If you’ve been left out of a will, don’t just sit there and stew—contest it! You have every right to contest the will, but there are some things you need to know first. This guide provides everything you need to contest a will, including what the process involves, how to hire a lawyer, how much it costs and what to expect along the way, so that you can contest your will confidently with proper preparation and information.
What is a will?
In its simplest form, a will is an official document detailing how your assets will be divided upon your death. A wills lawyer can help you make and/or contest your loved one’s will if you feel it's necessary. To understand how to dispute a will, it’s important to know what goes into creating one and why some are contested in court.
Where should I start? The first steps
It’s important that you don’t rush into challenging a will. First, try and establish exactly what it is that you think isn’t right with your loved one’s will. Will solicitors can give you advice on whether it’s even possible for you to contest a will, and help you take your first steps. After all, it may not be possible or even advisable to start challenging a will right away.
1 — Understand what is happening
When someone dies and has made out a will, there are steps that have to be followed before their wishes can come into force. Firstly, if they haven’t made one themselves, they must go through probate. This process is administered by an executor who gathers in all of their assets (including real estate) and pays off any debts before distributing any remaining money or possessions according to their will.
To contest the will, you will need to understand what the document states. Who are the beneficiaries listed in the will? What assets does it include? How much money is being left for each person or organisation? And what’s your relationship with the deceased? If he or she was your spouse, for example, you’ll have more rights than if you were just an acquaintance.
Challenging and Contesting a Will: What are the differences?
Contesting a will is very different from challenging it. Contestants have the right to contest their shares in accordance with family law, which includes launching "provision" claims when they feel left out or mistreated by what's written within that particular document as well as disputing any legatees who may receive too much property without due consideration given towards other beneficiaries according them faster death benefits for instance.
What is a family provision claim?
A family provision claim is an application to the Supreme Court of NSW for a share or a larger share from the estate of a loved one.
If you are an 'eligible person' who has been left out of a will, or did not receive what you thought was yours to begin with then it's time for some family justice! A claim can be filed within one year after the date where they died (on or after March 1st 2009).
You do not need to get either a grant of Probate or Letters Administration before applying for family provisions.
What is probate, and why should I care?
Probate is the process of validating an individual's will, which can be messy if there are any debts owed. The executor ensures these things get taken care of before distributing remaining assets according to instructions in their last wishes!
When awarded, a grant of probate from the court is a legally-binding court order acknowledging the validity of the will and designating the person or persons responsible for overseeing the estate.
2 — Determine if there are grounds for contesting the will
The grounds for contesting a will in each state varies but generally include: fraud, undue influence and lack of testamentary capacity. An experienced wills and estates lawyer will be able to tell you if any of these grounds exist in your case.
Is the will valid?
If you want to know if a will is legally valid, you need to ask yourself these 5 things:
- Was it the last will made by the deceased?
- Did they execute this will according to all of its' legal requirements?
- Did they have testamentary capacity at the time of signing this document?
- After signing it did they alter this document without changing who gets what?
- Was there any external force applied in an unfair way while they were drawing up this document?
Who can contest a will?
In most cases, anyone can contest a will—but they’ll need to have good reason. Generally speaking, there are three grounds on which you can contest a will (with varying success rates).
- The first reason you can contest a will is if you feel that there was an error in its drafting or suspect fraud at play.
- For example, you believe there is something missing from it, or there was some kind of technical mistake in how it was written.
- The second is that you believe that a person was unduly influenced or coerced into making changes in their will, and so those changes were not made of their own free will.
- For example, let’s say your father was signing his will but then all of a sudden one of his sons came in and started yelling at him about how he should leave everything to him instead or else he’ll kick him out.
- The third ground for contesting a will is if you believe that a person did not understand what they were doing or was of unsound mind when they signed their will.
- For example, if your parent had dementia or Alzheimer’s disease at the time he/she signed his/her will, it might be possible to contest it.
If any of these situations apply to you, then you may want to consider contesting a will.
3 — Understand how contests work
Once you’ve decided to contest a will, it’s important to understand what happens next. If you win, what happens next? When can someone else contest your will? How long does it take for cases like these to go through court? While there are some basic questions that everyone has about contests, knowing how common cases like these proceed in real life is critical for understanding if and when one is right for you. Here are some of those questions answered.
How long do I have to contest a will in Australia?
The time limit to challenge a Will in Australia is different depending on the state you live.
- NSW and ACT you have 12 months from the date of death to lodge a claim in court.
- Victoria you have six months from the date of the grant of probate to lodge a claim in court.
- Queensland you have six months from the date of death to notify the executor of a claim and another three months to lodge the claim in court.
- Northern Territory you have 12 months from the date of the grant of probate to lodge the claim;
- Western Australia you have six months from the date of the grant of probate to lodge a claim in court.
- Tasmania you have just three months to file a claim in court from the date of the grant of probate.
What is the benefit of mediation in a will dispute?
Before you think about disputing a will or making a family provision claim, mediation may be an option for both parties to save time and money. Mediation is voluntary so it's up the individual whether they want their case resolved through this form of communication or not. If this is something that interests you, then your best bet is to speak to one of our expert wills and estate lawyers to see what your next steps are.
If you win, what happens next?
Successful contesting of a will generally results in an order from probate court canceling or changing how assets are distributed. Winning a contest means inheriting more than you would have otherwise. In addition to winning inheritance money or property, sometimes judges award legal fees associated with fighting your case. This makes it easier for individuals who may not be as well off financially to fight for their fair share of an estate—as opposed to deciding not to fight because they don’t have access to funds necessary for lawyer fees and court costs.
What happens next depends on how much time you have before probate must begin…
For example, if probate must begin within 90 days of death, then any potential heirs will receive notice within 90 days of death informing them that they have been named in a pending probate case and asking them to submit any claims they might have against the estate.
If you do not file a claim within that timeframe, then whatever was outlined in your relative’s will becomes official at that point. However, if probate begins later than 90 days after death, then all heirs listed in the will have six months to file a claim against it.
What if you lose?
What happens if you lose your contest? If you fail to provide any evidence that there were flaws in your relative’s will or that they weren’t of sound mind when they made it, then a judge will ultimately decide that there is nothing wrong with it.
In those cases, contesting your loved one’s will can be an expensive and drawn-out process for no reason. While contests are often worthwhile, they aren’t always successful. There are several factors at play here—not just whether or not someone was treated fairly by their parent but also how much time has passed since their death (in other words, what kind of information might have been lost during that time). The more time passes between death and probate proceedings begin, for example, the harder it becomes to find people who knew your relative well enough to testify on your behalf about his mental state at different points in his life.
4 — Document and consider what it means for family members
Contesting a will is an emotional process. If you’re contesting your parent’s will, for example, there may be conflict between you and other family members. And if you win your case and receive assets from your parent that others thought should have gone to them, it could bring about even more tension between everyone involved. Make sure before you contest any will that you consider how doing so could affect other family members—it may not be worth all of their ill feelings.
How can I improve the success rate of contesting a will?
If you decide that contesting your loved one’s will is worth it, start gathering evidence against any beneficiaries who received more than they deserved. If you’re unable to convince them (or lawyers) that they received more than their fair share of assets, they may choose not to assist you in contesting it.
To gather evidence, make sure you get copies of all financial documents from your loved one—like bank statements and investment records—and keep track of any time other family members spent caring for them when they were sick or otherwise incapacitated. It’s also important to consider how much money was left over after other beneficiaries were paid out, as well as how much money was owed on credit cards and mortgages at the time of death.
5 — Think about costs and financial risk
Contested wills are time-consuming, potentially expensive, and can be stressful for everyone involved. If you’re not careful, your legal costs could equal those of what you stand to inherit. In most cases, contesting a will means that you pay all legal costs and other associated fees out of pocket, even if your case is unsuccessful.
If you're contesting your father’s will, for example, you could face costs of $2,000 or more. Also, if your challenge fails, you might have to pay back any money that your family members gave to you while they were waiting for probate.
How much does it cost to contest a will?
Generally the costs of a successful application for an order are paid out of the estate, though the court may order the payment of costs as it sees fit. If you intend to contest a Will because you believe it to be incorrect, then it's important to understand what the outcome of your claim might mean for the money involved. Legal expenses can vary greatly depending on the situation at hand; so it's best to speak with a wills lawyer about how much these matters usually cost and who pays to contest a will.
Some situations will involve litigation whereas others may settle before court proceedings are necessary. You'll know beforehand if litigation is an option by speaking with your lawyer and letting them know what your reasons for contesting the Will are.
In some cases, such as when mediation results in a settlement agreement between parties, legal expenses can come from this settlement fund instead of coming out of pocket or siphoning off monies from the estate itself.
What’s your budget?
In most cases, wills lawyers charge between $200 and $500 per hour. Depending on how much time they spend working for you, that may or may not seem like a good deal. But keep in mind that while they’re working for you—preparing legal paperwork, researching case law—they won’t be able to work for other clients.
At State Law Group, our expert wills and estate lawyers give you clarity and confidence behind your claim and then back it up with our “No win, No fee” policy.
6 — Consider whether or not to hire a lawyer
Whether or not you need a lawyer to contest a will depends on how complex your case is. If there are multiple issues that need to be addressed, you’ll likely want to hire a lawyer to get your case resolved more quickly.
If you plan on contesting a will in Australia, it’s good to be aware that the laws surrounding wills and inheritances can be complicated and confusing, even for lawyers. If you’re thinking about contesting a will without legal assistance, try talking with a wills lawyer first. In some cases, they may be able to help guide you through your options.
How do I avoid mistakes with my will dispute or claim?
If you’re contesting a will or other legal matter on your own, it is important that you follow all of the required steps. The last thing you want is for your case to be thrown out because of an oversight.
Here are several things you should consider when preparing your legal documents:
- Make sure that you’re aware of all filing deadlines—understand how long it will take for each document to be filed and what must happen for that document to become valid.
- Use legible handwriting—it may seem obvious, but illegible handwriting can cause confusion and delay proceedings.
- Do not submit any pages missing from your document package—missing pages can also cause delays in processing.
- Double-check that you have attached all relevant supporting documentation with your filing (e.g., medical records)—this information could become crucial later on in court proceedings if you need to prove a point about something like health issues or past criminal convictions.
- Hire an expert wills lawyer to be on your side—who helps you prepare these documents correctly and files them for you.
How can I find a good lawyer to contest a will?
Ideally, you’ll want a professional who will work with you and your specific circumstances—but how do you find that person? The answer may seem obvious: hire a lawyer. But which one? How do I find a good wills and estates lawyer? Here are some tips on getting started.
- Recommendations—you may know a friend or family member who has recently contested a will, or hired someone for similar services.
- Experience—your lawyer should have successful experience in handling similar will disputes such as yours, so share your unique details and ask your burning questions.
- Confidence—you should feel like you’re in good hands throughout this challenging time, a good lawyer is your trusted expert and guide during this challenging time.
- Convenience—your case could be a quick open and shut or it could take over a year to resolve so consider using a local wills and estate law firm so that its convenient for you.
At State Law Group, we aim to give you clarity and confidence behind your claim and then back it up with our “No win, No fee” policy. Book a free consultation today to speak with one of our expert wills and estate lawyers.