The passing of a loved one or family member can be a deeply emotional and stressful time, especially when it comes to settling their estate. If you’re in the unfortunate position of settling an estate in which you disagree with the validity or content of the will, don’t stress. You have options to dispute it. Here are some key things to know about contesting a will and how to start the process.
1. Contesting and Challenging a will are two different things!
Many people use the terms contesting and challenging interchangeably when talking about Wills but they actually mean different things.
Contesting a Will is when you have either been excluded from a deceased person’s Will, or you are contesting your share of the estate, so as to increase your allocation or to be included in the estate distribution. You can think of this as a ‘contest’ between family members, which is usually the case.
Challenging a Will is when you seek to have the Will struck out as invalid. This usually arises if the Will was made during a period the deceased person didn’t have the capacity to make a Wil; or if the deceased was put under pressure and influenced by another person to make the Will.
2. You can contest a valid will
Even if the deceased person was of sound capacity when they made the will, you can contest it if:
– You feel you have not received an adequate share of the estate
– You were promised certain assets or a specific amount of the estate
This type of contest of Will is called a Family Provision claim.
3. Only certain people can contest a Will under a Family Provision claim
A Family Provision claim is an application made to the court to seek the provision of an estate. Under the Succession Act 2006, you can make a family provision claim against an estate if:
● You are the deceased person’s spouse
● You are the deceased person’s child
● You are the deceased guardian
● You are wholly financially dependant on the deceased person
4. You can also challenge a Will if you were in a De Facto relationship with the deceased
To be eligible to challenge a will as a De Fact you must be able to prove to the court you were in a de facto relationship at the time of the deceased’s death, and not at a previous time. According to the Property (Relationships) Act 1984 a defacto relationship is defined as a relationship between two people who are not married or related by family, and who live together as a couple.
In verifying your de facto status a court will assess elements of your relationship including:
● The relationship duration
● If a sexual relationship exists
● If you live in a common residence
● If you share the care of any children
● The performance of household duties
● The degree of a mutual commitment to a shared life
● The state of financial dependence or interdependence and any agreements of financial support
● The public status and nature of your relationship i.e. if friends or family think of you as a couple
If the court determines your de facto status as valid you will be eligible to challenge the Will under the Family Provision.
5. Each state has different legislation
In Australia, the legislation that governs Wills varies slightly in each state and had its own set of rules and restrictions you’ll need to abide by when contesting. The state in which the deceased person lived and held most of their estate will be the state legislation and legal processes you’ll need to follow.
6. In NSW you only have 12 months to contest a will
According to NSW law, you are required to contest a will within 12 months of the deceased person’s death. It’s essential that you engage with a Succession Lawyer like our team at Marocchi Law as soon as possible to ensure timely action.
You and your lawyer will need to notify the executioner of your intent to challenge the will as soon as possible. A Family Provision Application will then be made to the Court seeking provision for you in the will.
7. You probably won’t go to court
Contest applications to the Court don’t necessarily end up going to court. Where possible a contest of will be settled outside of court, either through private negotiations or through mediation.
Mediation is still conducted in private but it has a strict legal set of processes that need to be adhered to by the executioner, the court, and you / your lawyers. The majority of cases are settled during mediation, however, if a resolution isn’t found the claim will be set down for trial and the relevant parties will be required to present cases before the Court.
8. If you do go to court, you may need to pay for your own legal fees
In general, the costs of a Family Provision Claim are covered by the estate at the discretion of the Will executioner. If your claim goes to court it can be a very expensive process, and while in some cases the legal fees will be paid for out of the estate, if your claim is unsuccessful you will be responsible for your own legal fees. In addition to this, if you are unsuccessful the court may order you to pay the legal fees of the estate.
Do you want to contest or challenge a will? Contact our team at Marocchi Law and we’ll help you assess and lodge your claim. We know this can be a very emotional time and our compassionate team is here to support you through this process.