10 Things You Need to Know About Contesting Wills – Victoria
If you have been left out of the Will or don’t get what you expected and are considering contesting the Will/ Estate – this is what you need to know.
1. Am I eligible to contest a Will?
You are eligible if you are a spouse, partner, child or step-child 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.
2. When can I contest a Will?
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.
3. Is there a time limit for contesting a Will?
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 as not been distributed to the beneficiaries and you get Court approval.
4. What assets can I claim against?
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 administrator where there is no Will 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.
5. What is the process for contesting a Will?
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:
a) 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;
b) an exchange of documents with the Estate on matters relevant to your claim;
c) mediation which can be in person or online;
d) a hearing if there is no settlement at mediation or thereafter.
6. How long does it take to contest a Will?
Overwhelming, 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.
7. What does the Court take into account for Will contests?
Broadly the Court considers:
a) the degree of moral duty the deceased owed you to provide for your proper maintenance and support; and
b) whether the distribution of the Estate fails to make adequate provision for your proper maintenance and support.
Matters the Court must consider include:
a) the content of the deceased’s Will;
b) any evidence of the deceased’s reasons for the dispositions in the Will;
c) any evidence of the deceased’s intentions to provide for you;
d) the degree of moral duty the deceased owed you in examining the relationship or non-relationship (estrangement) between you and the deceased;
e) the degree to which the Will fails to provide for your proper maintenance and support;
f) 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.
8. What is my Will claim worth?
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 is 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.
Further, the lawyer’s case work in assembling relevant evidence in matters the Court must have regard to is critical to maximising the value of your claim.
9. How much does it cost to contest a Will?
Your costs to completion of a court ordered mediation and usually settlement of your claim generally range between $20,000-40,000 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.
10. Is a “no win no fee” arrangement possible for a Will dispute?
Subject to you having arguable grounds to contest a Will or Estate, a “no win no fee” arrangement is possible, usually meaning:
a) you would not have to pay any monies up front on account of fees or out-of- pocket expenses;
b) in the unlikely event your case was unsuccessful, you would owe no fees or have to reimburse the out-of-pocket expenses;
c) payment of fees and reimbursement of out-of-pocket expenses would occur subject to your case succeeding in getting provision via a settlement or Court Order.
Find Out More About Contesting a Will
Talk to one of our Will dispute lawyers now about contesting a Will
Our expert Wills and Estate lawyers can help you establish if you have a case for contesting a Will.
Galbally & O’Bryan is one of Victoria’s leading Contesting Wills law firms. We offer a free first consultation over the phone and act “no win no fee”. Partner Andrew O’Bryan and Senior Associate Carl Wilson are expert Wills lawyers. Both Andrew and Carl will review your case and provide clear, easy to follow advice and take action to give you the best possible outcome.
We have offices at Melbourne, Dandenong and Pakenham.
Contact us or call us on 03 9200 2533.
How to contact our Wills & Estates Lawyers
Contact out Wills & Estates lawyers
Andrew O'Bryan
Galbally & O'Bryan
Lawyers
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533 I M 0400 469 704
E aobryan@galballyobryan.com.au
Carl Wilson
Galbally & O'Bryan
Lawyers
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533
E cwilson@galballyobryan.com.au
Dandenong Office
Shop 9 / 147-151 Foster Street
DANDENONG VIC 3175
T (03) 9769 2510
E nglavic@galballyobryan.com.au
Pakenham Office
Shop 1, 15 John Street
PAKENHAM VIC 3810
T (03) 5941 7990
E pakenham@galballyobryan.com.au