contesting a will, estate litigation lawyers

Contesting a Will

Sensitive, expert advice.
No cost, no obligation 30 minute assessment.

Book your free consult or call us on 03 5273 5273

Considering contesting a Will?

Let us guide you through.

While we all have the freedom to leave our estate to beneficiaries of our choosing, on occasion it may be appropriate to challenge the Will of a person who has passed away. This is known as “contesting a Will”.

At Coulter Legal, we can help you with any Estate Dispute, to ensure you know your rights and are comfortable with how an estate is dealt with.

Are you an executor of a Will looking for advice? Find out more about how we can assist you with estate administration or defending a claim.

What is the process?

  1. Use our secure online induction in your own time to provide our lawyers with the information they need to assess your circumstances.

  2. Our lawyers contact you to provide advice regarding your circumstances, the options going forward and our pricing options. You then decide how you wish to proceed.

  3. Then our lawyers guide you through the process of navigating your claim.

Estate Administration

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Contact us to book your no cost 30 minute initial consultation

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What our clients have to say

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James has been an absolute pleasure to work with. During extremely difficult times for myself and my children he has always maintained focus on what was in our best interests. Even when I was unsure, scared and frustrated, James always explained every step in minute detail to remove any of my concerns . He was always readily available either via phone, email or face to face. His dedication and support to myself and my children will always be appreciated. My family will forever be thankful to James for his support and guidance.I would highly recommend James and his team to anyone who is seeking support with Family Law concerns.Thank youJaye & Family
Coulter Legal come with the highest recommendation from my recent experiences. Professional, compassionate and available anytime for anything I needed. Lawyer Satbir Singh is someone you would always want in your corner a true professional!
Samaritan House Geelong would like to thank Melaine Hudson and Rachelle Eytan of Coulter Legal for providing help and guidance on a conveyancing matter. A wonderful outcome for supporting our vision that "No person needs to sleep rough in the Geelong Region".
Highly recommend. Sophie was responsive and exceptionally helpful with ensuring that the whole process ran smoothly.
Satbir and Cooper have been fantastic to deal with. They have made the whole process seamless. Also offered a very supportive space. I couldn’t recommend a better suited team.
Satbir showed a deep understanding of my personal situation and demonstrated empathy throughout the legal process. He answered all my questions with great clarity and patience. Satbir kept me informed every step of the way which gave me great peace of mind and I couldn’t recommend him highly enough.Thankyou sincerely Satbir, you are a unique champion lawyer and adviser.
The team at Coulter Legal (especially Satbir) were outstanding in managing my separation. Satbir’s communication was clear and concise and his guidance through the process was truly appreciated.
Another great experience working with Coulter Legal who provided great and timely advice. What was a daunting experience was made easy and seamless, thank you to Rachelle for all her assistance.
I engaged Lauren to prepare my first Will and Powers of Attorney and expected it to be a daunting exercise. However, with Lauren's guidance, the process was streamline and efficient. She was attentive to my numerous queries and kept me informed at every step.
I am grateful for the assistance I have been provided by James Maxwell and the team supporting him. My queries and concerns were heard and responded to in a prompt, caring and professional manner. I am very satisfied with the outcome of what was a long, drawn out and at times stressful process, and felt I was supported and advised in a knowledgeable and ethical manner.I highly recommend James and the team at Coulter Legal.
Satbir is an exceptional lawyer and human being. He is able to skillfully navigate family law matters in a pragmatic way that always honors the unique needs of the children and families he represents. I can't speak highly enough of Satbir. I will be forever grateful for the positive child focused outcomes he has achieved and the compassionate way he conducts himself.
Extremely Happy with the professionalism and dedication I received from Satbir Singh in relation to the situation I found myself in.His expertise and advice has been greatly appreciated.I would strongly recommend him and his firm.Feeing very relievedHeather Ennor
Satbir has been a great ally in what has been a very protracted experience to settle parenting and financial matters during separation. He has gone above and beyond for me on several occasions, making sure everything has been as smooth as possible, and important to note in legal circles, I’ve always felt that the fees have been very reasonably applied - which did not appear to be the case for my partner’s legal representative.
From my very first meeting with Satbir, it was evident that he approached his work with genuine care and empathy. Satbir took the time to listen to my concerns and understand the complexities of my situation, providing guidance and reassurance every step of the way.Satbir navigated the legal aspects of my separation with diligence and proficiency, ensuring that my rights were protected and that I understood the implications of every decision we made.What truly set Satbir apart was his kindness and compassion. He provided not only legal counsel but also emotional support, offering a listening ear and words of encouragement when I needed them most.Thanks to his guidance, I was able to navigate the challenges of my separation with greater ease and confidence. He helped me find clarity in a time of confusion and provided me with the strength to move forward toward a brighter future.I would not hesitate to recommend Satbir to anyone in need of legal assistance, knowing that they will receive not only top-notch legal representation but also the compassionate support they deserve.
Satbir is highly recommended, personable and understands the importance of meaningful legal direction. He capably reads the room and does all and sundry for the best outcome for his client. He certainly shows compassion. He is a wealth of knowledge and represents Coulter Legal with integrity and respect.
I can't thank my lawyers enough for their exceptional support during my separation process (Special thanks to Skye Wylde, Julia Walker, Tori Jaques and their teams).Their guidance was invaluable, turning what could have been a daunting experience into a surprisingly seamless journey. Their timely advice not only made the decision-making process practical but also ensured that I felt supported every step of the way. I highly recommend their services for anyone navigating the complexities of separation. A heartfelt thanks to the entire team for their professionalism and compassion.
Exceptional Divorce Attorney - Diligent, Professional, and TrustworthyI recently had the privilege of working with Laura Villemagne‑Sánchez for my divorce proceedings, and I cannot express enough how grateful I am for her outstanding legal expertise and unwavering support throughout the entire process.From my first consultation to the final resolution, lLaura Villemagne‑Sánchez exhibited a level of diligence and professionalism that truly set her apart. She navigated me through the complexities of the legal system with expertise, ensuring that every detail was meticulously addressed.One of the most commendable aspects of Laura Villemagne‑Sánchez's approach was her commitment to transparency and honesty. She consistently kept me informed about the progress of my case, explaining legal nuances in a way that was easy to understand. This level of communication not only provided me with peace of mind but also demonstrated her dedication to client well-being.What truly stood out was Laura Villemagne‑Sánchez's ability to make me feel at ease during a challenging time. Divorce can be emotionally taxing, but her empathetic and reassuring demeanor made the process more manageable. I always felt that I could trust her guidance, and her integrity was evident in every interaction.In addition to her legal acumen, Laura Villemagne‑Sánchez was prompt in responding to my inquiries and addressing any concerns.In summary, I wholeheartedly recommend Laura Villemagne‑Sánchez to anyone in need of a divorce attorney. Her diligence, professionalism, honesty, and the ability to instill trust make her an invaluable legal partner. Thank you, Laura Villemagne‑Sánchez for guiding me through this challenging chapter with grace and expertise.
Cannot express how grateful my partner and I are for the help from Coulter Legal and professionalism when dealing with our matter!Special shout-out to Laura Villemagne-Sánchez who got us to an incredible result which we did not even imagine reaching!! :DHighly recommend Laura and her team who proved to have been very knowledgeable and great to deal with throughout the entire process (she's a bloody legend of a woman too)!
Priya Silwaraju was recommended to us as an outstanding Wills and Probate lawyer. We had what a SC referred to as one of the most complex cases he had come across, requiring a level of expertise and inquiry transcending most cases. Priya not only achieved for us an absolutely excellent outcome, but provided much needed reassurance throughout the process as we were dealing with unfamiliar territory. Her consistent and clear explanation of every step of the process and clear advice kept us continually abreast of everything going on. We also benefitted from her incorporation of advice from senior counsel and barristers specialising in specific areas of law. Her warm and personable manner never faltered and it was this human element that made the entire process so much easier for us. Priya’s exceptional knowledge of the law was also paired with her ability to juggle multiple perspectives and approaches in order to achieve the best outcome. We were able to rest easy in the knowledge that she would go above and beyond for us, which she did numerous times. We are so grateful for not only her expertise and our ability to rely on this but also for her integrity and warmth. Thank you Priya, for navigating us through one of the most stressful times of our lives and for the exceptional result you achieved for us. We are so grateful.
Friendly, efficient service and valuable advice - particularly impressed with great Zoom meetings
Laura Villemagne-Sánchez and Coulter Legal handled my matter with the utmost professionalism and gained me the best outcome I could hope for.Through out the process I was confident in my representation as Laura was very patient, friendly, thorough and understanding of my situation.As well as being kept up to date regularly, any questions I had were explained and simplified.I cannot recommend Laura and her team at Coulter Legal enough.Thank you for your support and due diligence
The team at Coulter Rouche, most particularly Asha was nothing but commendable. Professional, responsive and dedicated. We experienced an authentic care and focus that we are confident made our settlement a success. Hats off.... Thanks somuch.

What should I consider?

Yes, if you are deemed an eligible person.  An eligible person is:

  • A spouse or domestic partner of the deceased;
  • A child (including adopted child and stepchild) of the deceased;
  • A former spouse or domestic partner who would have been eligible to commence family law proceedings against the deceased; and
  • A member of the deceased’s household at the time of their death.

Initially, you must be able to establish that:

  • You have a financial need;
  • The deceased had a moral obligation to provide for you; and
  • What they provided (if anything) was insufficient.

There are a number of further factors which will be taken into consideration.  Expert advice is essential before commencing any Estate Dispute, as proceedings commenced without a proper basis can result in costs being awarded against you.

These factors include:
  • Any documents the deceased left detailing their reasons;
  • The nature of your relationship with the deceased;
  • The moral or financial obligations the deceased had to you and other beneficiaries (if any);
  • Your financial resources, and the financial resources of other beneficiaries;
  • The size and nature of the Estate;
  • How the Will or laws of intestacy fail to make adequate provision for you;
  • Your age, and the age of other beneficiaries;
  • Any conditions you, or other beneficiaries, have been diagnosed with;
  • Financial support provided by the deceased to you, or received by the deceased from you, during their lifetime;
  • Whether or not there is another person/s who owes you an obligation to provide for you in their Will;
  • The impact any change to the Will would have on the other beneficiaries; and
  • Your character and conduct during the proceedings.

If, after assessing the relevant factors, we consider your claim has sufficient merit and a realistic chance of success, we can assist you with initiating your claim and guide you through the Court process.

Ordinarily, we will contact the Executor (through their lawyer) to advise them of your potential claim.  Informal negotiations may then follow in an effort to resolve the dispute early, but if those negotiations are unsuccessful, we will file your claim with the Supreme Court.

The Court will then set out a timetable for the matter, including deadlines for:

  • Filing evidence – usually in the form of an Affidavit or Position Paper which details your claim in specific detail.
  • Conducting a mediation – where all parties come through in an effort to resolve the matter.  Most claims are resolved at this stage.
  • Conducting a Trial (if necessary) – where the claim is heard and determined by the Supreme Court.

Once the claim is resolved or determined, the administration of the estate will be finalised in accordance with the Terms of Settlement (agreed at mediation) or Court Orders (made by the Court after Trial).

There are 3 common grounds for the abilty to contest a Will:

Lack of Testamentary Capacity

A person making a Will must have ‘testamentary capacity’ at the time of making and signing their Will, in order for that Will to be deemed valid.

A person will be deemed to have testamentary capacity if they:

  • Understand the nature and importance of a Will;
  • Understand the nature and value of their assets;
  • Understand the effect of disposing of their assets in their Will;
  • Recognise there are people who may have a claim against their estate or an entitlement to provision;
  • Can balance and weigh-up those potential claims; and
  • Were not suffering from impairment (i.e. delusions, hallucinations, dementia) which would have affected their capacity.

If a person did not possess testamentary capacity when they executed their Will, their Will shall be deemed invalid.  In these circumstances, their most recent previous Will shall be relied upon, but if they did not have a prior Will, the intestacy provisions will apply.

Undue influence

A person must not be unduly influenced or placed under duress to prepare and sign their Will.  If there is evidence a deceased was influenced or placed under duress, and they resultantly executed a Will contrary to their wishes, the Will shall be deemed invalid.  Importantly, the Court will require strong evidence to be satisfied of undue influence.

Suspicious circumstances

The validity of a Will can be called into question if there was a significant change made to the Will shortly prior to the deceased’s death.  For example:

  • A beneficiary suddenly receiving substantially more provision;
  • A new beneficiary, not previously mentioned in a Will or who had only recently entered the deceased’s life, added to the Will as a major beneficiary; or
  • A major beneficiary was instrumental in preparing the most recent Will.

Validity may also be queried if:

  • The deceased suffered from substance addiction, frailty or illness;
  • The deceased had a sudden change in personality, habits or relationships;
  • The deceased suffered from a condition which would have made signing their Will impracticable or impossible but the document still bears their ‘signature’;
  • An Executor or major beneficiary named in the Will acted as translator for a deceased who had limited English skills; and/or
  • The Will was only witnessed by people named in the Will (Executor or beneficiary).

You should seek legal advice immediately.  The steps for challenging a Wills’ validity depend on how far the estate administration has progressed:

  1. If Probate of the Will has not been granted, you can file a Caveat to temporarily prevent Probate being granted, then take action to prove the invalidity of the Will; or
  2. If Probate of the Will has been granted, you can commence civil proceedings in relation to the Probate proceeding.

The Will shall be deemed invalid and the deceased’s prior Will shall be deemed their final Will.  If the deceased did not have a prior Will, the laws of intestacy shall apply.

You have six months from the date Probate is granted to contest the Will and can commence proceedings at any time within that six month period.  Once proceedings are commenced, it can take 6 – 12 months for a matter to be finalised, and if the matter proceeds to Trial, it is likely to take several years

The stages of the proceeding are generally as follows:

  • A Directions Hearing will be held approximately one month after proceedings are commenced;
  • The person contesting the Will is required to file their evidence approximately two months later;
  • The Executor is required to file their evidence approximately one month later;
  • A Mediation is to be conducted approximately two months later; and
  • If the matter does not settle at Mediation, the Court will list the matter for Trial – this will be at the Court’s discretion and dependent upon Court backlog.

We will provide you with our pricing options after considering your matter, and will provide you with our formal Disclosure Statement and Costs Agreement once you decide to proceed.  We will request a retainer from you to cover expenses, including Barrister’s costs.  Usually, the balance of our price will be paid from funds you receive once your claim is concluded.  We do, however, we reserve the right to render invoices at regular intervals, but this will be discussed with you at the outset of the matter.

If settlement is reached at mediation, Terms of Settlement will be prepared detailing what you are to receive from the estate and, shortly thereafter, you will receive your entitlement.  If the matter progresses to Trial and the Court determines in your favour, the Court will make an Order detailing the additional provision you are to receive from the estate.  The Court may also make an Order in relation to costs, which may result in the estate having to pay your costs, or each party bearing their own costs.

If you are unable to reach agreement through negotiation or at mediation and the matter progresses to Trial, the Court will make a determination about your claim.  If this decision goes against you, you will be left with the provision made for you by the Will (if any).  The Court may also make an Order in relation to costs, which may result in you having to pay the Estate’s costs.

Need to Contest a Will?
We can help.

Sensitive, expert advice.
No cost, no obligation 30 minute assessment.