In Australia, there are various rules and time sensitive regulations applicable to Will process. To help ensure you avoid any unnecessary issues — contact us as soon as possible for an obligation free assessment.
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. The following focuses on those applicable in Victoria (VIC) and New South Wales (NSW).
Victoria
Anyone can apply to the court for provision out of a deceased person’s estate, provided he or she can show that the deceased person had responsibility to make provision for him or her.
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.
Factors the court considers
Victoria
The court will consider the nature of the relationship between the claimant and the deceased. You no longer need to be a family member to claim
in VIC. It will be necessary however, to show the deceased had an obligation to provide for you.
The court will also consider your financial needs, as well as those of any other beneficiaries or potential beneficiaries for whom the Willmaker should have provided.
The size of the estate will also be taken into account.
If you’ve contributed in any way to the value of the estate, or if the Will maker had been providing for you before their death, that will also be a factor.
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 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.
Mediation
The court requires 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.
