Contesting Will Claims

You are eligible if you are a spouse, partner, child or stepchild of the deceased.

If you are not one of these eligible persons, you should get legal advice because your circumstances may mean you are eligible.

Your claim can only be made, if there is a Will, after it is probated (approved as valid by the Court), or if there is no Will, after an administrator for the Estate is appointed by the Court.

The time limit is 6 months from the date of the Probate Grant or Administrator appointment (Letters of Administration).

You can still claim after the 6-month expiry so long as the Estate has not been distributed to the beneficiaries and you get Court approval.

You can only claim against assets which the deceased personally owned or had an interest in.

An Inventory of Assets and Liabilities of a deceased must be drawn and submitted to the Court when an executor applies for Probate or where an administrator applies for Letters of Administration.

Assets held in trusts and superannuation are usually not assets of an Estate because they are not personally owned by a deceased.

Legal proceedings are issued against the Estate in either the County or Supreme Courts. Your claim is made against the executor (if there is a Will) or the administrator (if there is no Will).

Court steps usually include:

1. subject to advice you setting out the amount of your claim and factual matters in support of it in the form of a position paper or affidavit;
2. an exchange of documents with the Estate on matters relevant to your claim;
3. mediation which can be in person or online;
4. a hearing if there is no settlement at mediation or thereafter.

Overwhelmingly, Will Contest claims resolve by settlement negotiation either prior to, at, or after mediation. A timeframe to resolution is generally 6-9 months from the time legal proceedings are commenced.

In the unlikely event your claim had to be completed at a final hearing, the timeframe is generally 12-18 months.

Broadly the Court considers:

1. the degree of moral duty the deceased owed you to provide for your proper maintenance and support; and
2. whether the distribution of the Estate fails to make adequate provision for your proper maintenance and support.

Matters the Court must consider include:

1. the content of the deceased's Will;
2. any evidence of the deceased's reasons for the dispositions in the Will;
3. any evidence of the deceased's intentions to provide for you;
4. the degree of moral duty the deceased owed you in examining the relationship or non-relationship (estrangement) between you and the deceased;
5. the degree to which the Will fails to provide for your proper maintenance and support;
6. the degree to which you are not capable by reasonable means of providing adequately for your proper maintenance and support.

A key consideration is your financial circumstances and what provision from the Estate is required for your proper maintenance and support.

Assessing the value of your claim has some complexity because the question of what provision is “proper” for your maintenance, support and advancement in life involve value judgments on which different Court Judges' minds can differ and there are no definitive criteria by which the question can be answered.

What is clear is the amount of provision you get is not according to notions of fairness and equity.

Your costs to completion of a court ordered mediation and usually settlement of your claim generally range between $25,000-45,000 inclusive of out-of-pocket expenses.

It is common as a term of your claim's settlement that all of your costs are paid out of the Estate.

Again, if your claim was completed at final hearing and the Court made an Order that you get provision, usually your costs would be ordered to be paid out of the Estate.

The upshot is your claim should not cost you anything from your own pocket.

Subject to you having arguable grounds to Contest a Will or Estate, a “no win no fee” arrangement is possible, usually meaning:

1. you would not have to pay any monies up front on account of fees save for out of pocket expenses such as court filing fees;
2. in the unlikely event your case was unsuccessful, you would owe no fees;
3. payment of fees would occur subject to your case succeeding in getting provision via a settlement or Court Order.