Contesting a Will can be a confusing process, and especially confusing if are in the midst of grief from having lost a loved one. It is possible for family members to contest a Will where the Will is invalid, or where proper provision haven’t been made (making the Will unfair). Courts may have the power to adjust a Will under such circumstances and re-distribute the estate accordingly.
The family provision legislation can sometimes be used to fix any issues around a Will. In 2009 there were amendments made to the Succession Act which extended the number of people who are able to make a claim against a Will. However, the changes also stipulated that the timeframe being direly shortened. As a result, any changes to the Will had to be made before the estate is formally distributed amongst the beneficiaries provided for in the Will. From 2009 onwards, the amendments meant that those who sought to contest a Will had twelve months as opposed to eighteen months to formally challenge a Will.
According to the revised Family Provision Act 1982, those that are eligible to apply are restricted to the following individuals.
- The wife or husband of the deceased person at the time of death;
- A person with whom the deceased person was living in a defacto relationship at the time of their death (including same sex partners);
- A child of the deceased person;
- A former wife or husband of the deceased (only in certain circumstances);
- A person who was at any particular time, wholly or partly dependent on the deceased person, and at any time a member of the same household of the deceased person (for example a step-child);
- A grandchild who at any particular time wholly or partly dependent on the deceased person; and
- A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
Amongst the many considerations that the court may take into account, there are three main ones that contribute to the final decision of the ruling. The three main considerations are as follows:
(i) The character and conduct of the eligible person before and after the death;
(ii) Any contribution made by the eligible persons towards the deceased’s property or welfare; and
(iii) Anything the Court considers relevant.
Now that we have covered some of the considerations made by the court ahead of the process, we will now analyse the actual process that is involved in contesting a Will.
The Step-By-Step Process of Contesting a Will
Step 1: Negotiating
Oftentimes, contested Will cases can be settled before even reaching court. This is often the case with estate law as well as family law and custody issues. If both parties are amenable, they will easily resolve the conflict between themselves. The negotiation process involves getting a negotiator to help mediate a deal that is favourable to the two parties.
Step 2: Setting up mediation
The mediation process ties in closely to the negotiation process. This involves a neutral party being present to act as an appointed Mediator, discuss the problems and help facilitate possible solutions that may result in a settlement. As is similar to family law, up to 90% of all cases are settled before the court process. If a party wishes to go straight to court, they may be required to firstly go through the mediation process. If a party is unwilling to participate, the other party may receive a form that will help them take the proceedings further.
Step 3: Organising arbitration
It is still possible to avoid a court hearing if the mediation has not worked. The arbitration process is a process whereby an arbitrator will hear both sides and then decide on a legally binding course of action.
Step 4: The litigation process
If all other options are exhausted you may be required to opt for court. This can be an expensive and draining process and should be best avoided if at all possible. The application should be as soon as possible. If the deceased’s estate is distributed before this can happen, it is likely that the case will never get picked up. Although the period of time under which someone can contest a Will differs between states, it is often under 12 months from the time of death of the testator.
Under what circumstances can a Will be contested?
If you believe you are entitled to estate, it can be hard navigate the legal reasons for contesting a Will. Australian Law favours the testator, but is always willing to listen to those who have genuine reason to contest a Will – whether that be due to an invalid Will or improper provisions being made within the Will for dependant persons.
There are a variety of reasons that someone may contest a Will. It will all depend on the individual circumstances as to whether the case will be successful or not. Some of the reasons for challenging a Will may be as follows:
- If the family of the testator have not been fairly provided for, there is a genuine case for contesting a Will. Some examples of this may be if the deceased has left nothing to one child, but everything to another. Another scenario may be if the testator has left nothing for their defect partner. And, finally, another common scenario may be that a step-child is left with less or no provision.
- If the testator’s testamentary capacity was compromised they may dismiss the Will on the grounds that they did not have the ability to know what they were signing off on.
- Another scenario where a Will can be contested would be under the instance of undue influence. If the Will was signed in an underhanded way that did not reflect the testator’s wishes, there are grounds for challenging a Will.
- If an executor is doing their job improperly, is it likely that they will be removed from their position. This will require legal action, and the executor may be required to compensate the beneficiaries for any loss, financial or otherwise, they may have suffered from the negligence or wrong actions of the executor.
How does Estate Law differs in each Australian state?
Contesting a Will, or challenging a Will, involves entirely different sets of legislation depending on which state you reside in. We recommend that your contact your local estate lawyer to discuss the specifics of your case. They will also be able to best inform you of the different requirements involved in an Estate Law case when contesting a Will.
How much will it cost if you wish to Contest a Will?
This is highly variable on a variety of things. For example, the solicitor you choose will charge more or less depending on their reputation. The complexity of the case or situation will also affect the cost of the court changes. If it is a small estate, the final costs of contesting a Will not be as high as if it were a mansion or estate worth several million dollars.
How long does a Will contesting case go on for?
This depends, yet again, on the complexity of the case and the situational variants. In states such as New South Wales or Victoria, it is possible that out of court hearings can be settled in six months, whilst longer court hearings can last several years. Some states take longer than others, Queensland being one of them. The jurisdiction will also have a massive impact on the procedure. Some jurisdictions can be much longer than others in resolving legal issues.
Is it possible to contest a Will based on the case of dementia?
This falls under the category of testamentary capacity. A testator with dementia may not have been in a state of mind to approve a Will properly. As such, it is possible that a claim can be made to the court to disregard any existing Will. If the Will is terminated, it will then be possible for beneficiaries to seek a part of the estate through a family provision claim.
Is it possible for one of the beneficiaries to contest a Will?
Beneficiaries have been known to contest a Will in the past, especially if they feel their share of the estate was not fair. What matters most in a case like the is the six of the estate and whether there are any competing claims for the estate. If, for example, the beneficiary received a very small sum of a large estate, they could argue that Will was unfair. You may also argue that there is a moral duty on behalf of the deceased to look out for those they have guardianship over or are otherwise responsible for.
As you can see from the above examination of the Will contesting process, it is hardly ever a straightforward process. However, with the right guidance from an experienced estate lawyer, you will find the process a lot easier to cope with.