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Timing is important

In Australia, there are various rules and time sensitive regulations applicable to challenging a Will. To help ensure you avoid any unnecessary issues — contact us as soon as possible for an obligation free assessment.

 

Peter Michael Cain Reg. No. E0023035 Irongroup Lawyers

How does it work?

The steps involved in contesting a Will

Step one:

Call us — You’ll have an initial chat with one of our lawyers about your circumstances. If they feel you have a valid case, they’ll arrange a time for you to meet with them, at no cost to you.

Step two:

Client interview — You’ll meet with one of our friendly lawyers, obligation-free, to discuss your circumstances in more detail. Our people understand how difficult this can be and will help ensure you are as comfortable as possible with the process.

Step three:

Obligation free assessment — After this discussion we’ll provide you with our assessment of your case.

Step four:

Issue proceedings — If we believe your case has a good chance of success, and you agree to go ahead — we’ll commence proceedings. This means we’ll prepare all of the paperwork necessary to begin and notify the executor of the estate not to distribute any assets until the dispute is settled.

Step five:

Mediation session — Mediation is an essential part of the process. It involves both parties, and their respective lawyers, coming together to discuss a settlement. This session is held on a date set by the court and in many cases results in a settlement between the parties without the need to go to court. This can save many thousands of dollars.

Step six:

Payment from the estate — In the event of a successful outcome you’ll receive a payment from the estate. Fees will generally be paid from the estate.

Who is eligible to contest a Will?

Various regulations apply in each state.

Victoria

Legislation (effective January 1st 2015) restricts the right to challenge to the following:
a)     the spouse or domestic partner at the time of the deceased's death;
b)     a child of the deceased, including a stepchild or adopted child who, at the time of the deceased's death, was under the age of 18 years; or a full-time student aged between 18 years and 25 years; or under a disability;
c)     a former spouse or former domestic partner, who at the time of the deceased's death would have been able to take proceedings under the Family Law Act 1975 and is prevented from doing so because of the death of the deceased;
d)     a child or stepchild of the deceased other than one under 18 years old, a full time student between 18 and 25 years old or under a disability;
e)     a registered caring partner;
f)      a grandchild;
g)     a spouse or domestic partner of a child of the deceased if the child of the deceased dies within one year of the deceased's death;
h)     a member of the household of which the deceased was also a member.

New South Wales

  • A wife or husband of the deceased person (including ex-spouses).
  • A de facto spouse or someone with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.
  • A child of the deceased.
  • A grandchild who was wholly or partly dependent on the deceased person.
  • A member of the deceased person's household who was wholly or partly dependent on the deceased person.

Queensland

  • The deceased person's spouse (this includes de facto).
  • A child of the deceased.
  • A dependant of the deceased

“Dependent” is defined as a person who is “wholly or substantially maintained or supported by the deceased person” and who is also a parent of the deceased, parent of a child of the

Australian Capital Territory

  • A partner of the deceased .
  • Someone in a domestic relationship with the deceased for 2 years or more continuously at any time
  • A child of the deceased
  • A stepchild of the deceased person

  • A grandchild of the deceased
  • A parent of the deceased

South Australia

    • A spouse or domestic partner of the deceased person
    • A person who has been divorced from the deceased person

    • A child of the deceased

    • A stepchild of the deceased who was maintained (or entitled to be) by the deceased person immediately before his death

    • A parent of the deceased who cared for, or contributed to the maintenance of, the deceased person during his lifetime

    • A brother or sister of the deceased who cared for, or contributed to the maintenance of, the deceased person during his lifetime

    Tasmania

    • A spouse of the deceased person

    • A child of the deceased person
    • A parent of the deceased person, if the deceased person dies without leaving a spouse or any children
    • A divorced (or anulled) spouse who was (or was entitled to) receive maintenance from the deceased person
    • A person who had been in a significant relationship (within the Relationships Act 2003) who was (or was entitled to) receive maintenance.

    Western Australia

    • A married spouse or de facto partner living with the deceased immediately before the death.
    • Someone receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner of the deceased
    • A child of the deceased
    • A grandchild of the deceased who was being maintained by the deceased
    • A child whose parent had predeceased the deceased
    • A parent of the deceased

Factors the court considers

Victoria

The court will consider

  • Whether the person was wholly or partly dependent on the deceased for their proper maintenance and support.

  • When determining the amount of provision, the Court must have regard to:
    a) the degree to which, at the time of death, the deceased had a moral duty to provide;
    b) the degree to which the distribution of the estate fails to make adequate provision;
    c) the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person's proper maintenance and support (only in relation to adult children under "Victoria category (d)" above);
    d) the degree to which the eligible person was wholly or partly dependent on the deceased at the time of the deceased’s death (only for applicants falling within "Victoria (e) to (h)" above).

    The Court must also limit the amount of provision by reference to the amount necessary for the applicant’s proper maintenance and support and must be proportionate to the degree of dependency at the time of the deceased’s death.

  • The size of the estate will also be taken into account.

New South Wales

In NSW the court will consider

  • The nature of the relationship between the claimant and the deceased.
  • It will be necessary to show the deceased had an obligation to provide for you.
  • The nature of the relationship between the claimant and the deceased.
  • The court will consider your financial needs. If you are in a domestic partnership or if someone is already responsible for providing for you — their financial situation will be taken into account.
  • The needs of other beneficiaries or potential beneficiaries for whom the Willmaker should have provided will also be considered..
  • The size of the estate will be a determining factor as may any property disposed of by the deceased for up to 3 years before their death..
  • If you have contributed in any way to the value of the estate or if the Willmaker had been providing for you before their death, that will also be a factor.
  • The testamentary intentions of the Willmaker will be considered but only in the context of other factors the court consider relevant including those mentioned here.
  •  

    Queensland

    The court will consider:

    • The nature of the relationship between the claimant and the deceased.
    • The extent to which the dependant was being maintained or supported by the deceased person
    • The need of the dependant for the continuance of that maintenance or support
    • Whether it is proper that some provision should be made for the dependant

    Australia Capital Territory

The court will consider:

  • The character and conduct of the applicant;

  • The nature and duration of the relationship between the applicant and the deceased;
  • Any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons
  • Any contributions (including any in the capacity of homemaker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person
  • The income, property and financial resources of the applicant and the deceased
  • The physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment
  • The financial needs and obligations of the applicant and the deceased (during the life of the deceased)
  • The responsibilities of either the applicant or the deceased (during his or her life) to support any other person
  • The terms of any order made under the Domestic Relationships Act 1994, with respect to the property of the applicant or the deceased
  • Aany payments made to either the applicant or the deceased by the other, under an order of the court or otherwise, in respect of the maintenance of the other person or any child of the other person
  • Any other matter the court considers relevant.

    South Australia

    The court can make such provision as it thinks fit from estate for the maintenance, education or advancement of the person so entitled.

    Tasmania

    The court will consider:

    • The net value of the estate
    • And whether any such person is entitled to independent means, as made by the deceased person during his life or derived from any other source whatsoever.

    Western Australia

    The court will consider whether adequate provision was made by the deceased for the proper maintenance, support, education or advancement in life of any of the persons mentioned above.

Mediation

The court can require that clients undergo a mediation session before appearing in court. This approach often results in the matter being settled without the need to go court, and can save thousands of dollars in fees.

So if you are entitled to funds from an estate it can help ensure more is available to be distributed.

Mediation involves both parties attending a meeting with an independent mediator. As your lawyer we would attend this meeting with you and present your case. Prior to this process we would work with you to gather all of the necessary information to allow us to represent your account fully.

Don't Win? No Fee

Not everyone can afford to pay a lawyer up-front — but that shouldn’t stop you from contesting or disputing a Will. We can offer to represent you on the basis of no fees being payable unless you succeed.

We’ll conduct an up-front review of your claim for no fee. If you proceed, and succeed, our fees will be paid from the inheritance you receive. If, after our initial review, we do not believe your claim will succeed and we go no further, no fee is payable.

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