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Contesting a Will Frequently Asked Questions
How to contest a Will
Testator family maintenance claims
A person who has been left out of a Will, or unfairly provided for can make a claim for a larger share of a deceased person's estate.
Common examples of this include:
- Where the deceased has three children and leaves his or her estate to two children in equal shares with nothing left for the third child;
- Where the deceased makes no provision for their de facto partner (including both heterosexual and same-sex relationships);
- Where the deceased makes no provision or lesser provision for a step-child.
The type of relationship that an individual has with the deceased leading to a potential claim against the estate continues to expand from state to state.
Lack of testamentary capacity claim
A beneficiary of an earlier Will can challenge a more recent Will if the deceased person did not have the mental capacity to understand what he or she was signing.
Undue influence claim
A beneficiary of an earlier Will can challenge a more recent Will if the deceased person was 'unduly influenced' by another person to sign a Will that did not reflect that person's true wishes.
Breach of trust claim
A beneficiary under a Will or trust can apply to the court to remove an executor or trustee who fails to administer a Will or trust properly. The beneficiary can also seek compensation if they suffer financial loss as a result of the executor or trustee's wrongdoing.
Is there a time limit by which to dispute a Will
It is essential that you obtain prompt legal advice about these issues as there are strict time limits to make these claims. Once a time limit has expired, it can be extremely difficult to progress any claim you may have as permission must be obtained from the Court allowing you to bring your claim out of time. This will usually only be allowed in circumstances where there are very good reasons for the delay. The time limit that applies to your type of claim will vary from state to state, please contact us for further information.
How are legal fees dealt with?
Slater and Gordon's No Win - No Fee scheme is usually available for claims relating to Will disputes. It’s designed to help those whose financial circumstances might otherwise deny them access to legal representation by postponing the payment of legal costs to the conclusion of a successful claim. In most instances, the legal fees incurred in a successful claim are paid from the estate.
Will I have to go to court?
It is often possible to settle a matter without the need to go to Court via pre-issue negotiations. However, if a resolution cannot be achieved, it may be necessary to proceed to Court in order to ensure that you receive a fair distribution from the estate.
As part of the Court process, mediation is usually ordered. The mediation is an opportunity for both sides to present the strengths of their relative cases, and hopefully, reach a settlement. The vast majority of matters settle at mediation. If a resolution cannot be achieved at mediation, the matter will then be listed for trial. However, it is rare for a matter to proceed all the way to trial as there are further opportunities to resolve the matter along the way via negotiation.
It is our aim to conclude a claim by settlement wherever possible. Slater and Gordon has the necessary expertise to take your matter all the way to trial should it be in your best interests to do so.
What if the deceased did not leave a Will?
If the deceased did not leave a Will, otherwise known as dying “intestate”, the deceased’s property is distributed according to rules set down in state-based legislation. However, these rules do not take into account the individual circumstances of any potential beneficiaries of the deceased, with the result that there may be an unfair distribution. If you are currently involved in this situation, please contact us promptly for further advice and information.
Can you tell me exactly what my claim is worth?
Until Slater and Gordon receives your full instructions, it is difficult to be precise as to what your claim is worth. Based on our experience in this area, and the instructions that you provide, Slater and Gordon will be able to provide you with a range as to the size of any claim you may have.
The following are some of the factors which are taken into account when assessing your claim and are useful in determining a potential range which you may receive from the estate:
- The nature of the relationship between you and the deceased
- The nature of the relationship between the deceased and any other beneficiaries
- The size and nature of the estate
- The financial needs of yourself and any other beneficiary
- The health needs of yourself and any other beneficiary
- Any contributions (without adequate repayment) you made to the building up of the estate, the welfare of the deceased or the welfare of the family of the deceased
What if I live in a different state from that of the deceased?
The law which governs the estate of the deceased is the law of the state in which the decease died leaving property. Property can either be “real”, for example, a house, or “personal” for example, cash. Commonly, it is a combination of the two. Even if you live in a different state from that of the deceased, Slater and Gordon can still assist you with your claim. The matter is able to be progressed through contact via telephone, email and traditional mail with your lawyer.
Other potential areas of dispute
Enduring Powers of Attorney
If a person appointed under an Enduring Power of Attorney is misusing their position, family members or any other interested party can apply to the relevant court, board or tribunal in each state (for example, the Victorian Civil and Administrative Tribunal) for the revocation of the appointment
Guardianship and administration
In circumstances where a mentally incompetent person is unable to manage their financial affairs, or make appropriate decisions regarding their welfare, family members or any other interested party can apply to the relevant court, board or tribunal in each state (for example, the Victorian Civil and Administrative Tribunal) for an order allowing them to manage the financial affairs or make decisions about their welfare.