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There are a few reasons why people ask us about contesting a Will. The most common reason is because they have been left out a Will.

What is contesting a Will all about?

You cannot contest a deceased’s Will just because you think it’s unfair. Everyone has the right to make a Will and leave their estate to whoever they wish, or to any organisation they wish. To contest a Will, you need to fit into a claim category and be able to prove your claim.

I have categorised contesting a Will into 2 categories:

  1. Family Provision Claims.
  2. Claims about the validity of a Will.

This article covers Family Provision Claims. Stay tuned for Part 2 covering claim abut the validity of Will.

Time limits for a family provision claim

  • QLD – within 6 months from the date of the deceased’s death, you need to put the executor on notice that you intend to make a claim.
  • QLD – within 9 months from the date of the deceased’s death, you need to commence court proceedings.
  • NSW – within 12 months from the date of the deceased’s death, you need to put the executor on notice that you intend to make a claim and commence court proceedings.

Who can make a family provision claim?

The categories of persons below are a general guide. There are some legal technicalities surrounding some of the definitions of the eligible applicants which are not covered in this article.

In Queensland, eligible applicants include:

  1. Spouse of the deceased (includes married, de facto and registered partner).
  2. Child of the deceased (includes adopted child and step child).
  3. A dependent of the deceased.
  4. Dependent former spouse.

In New South Wales, eligible applicants:

  1. Spouse of the deceased (includes married or de facto).
  2. Child of the deceased (includes adopted child but does not include step child).
  3. Former spouse of the deceased.
  4. Person who:
    1. at a particular time, was wholly or partly dependent on the deceased; and
    2. who is a grandchild of the deceased or was, at that particular time or any other time, a member of the deceased’s household.

Only certain step children can apply in New South Wales as they need to fit into category 4.

What do you need to prove for your claim to be successful?

There are many components to a family provision claim and there are some differences between Queensland and New South Wales. The basic things to understand with these claims are:

  1. There needs to be an estate with sufficient value to warrant making a claim.
  2. The deceased may have held all assets jointly with another person, for example, property owned as joints tenants or joint bank accounts. These items do not form part of the estate as they transfer to the surviving joint holder.
  3. An eligible applicant needs to prove they are an eligible applicant. This is done in a variety of ways and is simple where there is a marriage certificate or birth certificate.
  4. An eligible applicant needs to prove they have not been adequately provided for in the Will. This is done by proving you have financial need. The court looks at the financial circumstances of your household and you need to show that you are essentially in a poor financial situation.
  5. You need to prove that you had a good ongoing relationship with the deceased. This is so the court can see that your relationship with the deceased was of the type that warrants your financial need being met.

The Process

The process is somewhat similar in Queensland and New South Wales. The main steps are:

  1. Notifying the executor (or the executor’s solicitor) of a potential family provision claim.
  2. Commencing court proceedings. This means filing the relevant court documents at the court.
  3. A court timetable is set which outlines dates by which each party needs to do certain things. Such as, filing and serving their evidence, negotiating a settlement and what happens if settlement negotiations fail.
  4. The parties attend mediation.
  5. If the parties cannot resolve the claim at mediation, the matter will be set out down for a court hearing (a trial).

How much does it cost?

The costs vary depending on the complexities of the matter. Where the matter is straight forward with no complex issues in dispute, we use the following estimated range of costs:

  1. If the claim is resolved early, ie. prior to mediation – $17,000.00-$22,000.00.
  2. If the claim resolves at mediation – $27,000.00-$33,000.00.
  3. If the claim proceeds to trial – $45,000.00-$50,000.00 (for a 1 day trial).

These costs do not include any barrister’s fees or disbursements (such as court filing fees, expert reports, expert witness costs etc).

Legal advice

It is always important to seek individual advice from Wills and Estates Lawyers. Be mindful that strict time limits apply for making a claim.

* The above information is a general guide only and does not represent legal advice.