This area of law concerns those who feel they have been completely or partially left out of someone’s will and may choose to challenge their entitlements. With the growing rates of divorce more and more people are choosing to dispute someone’s estate as they were involved in a relationship with the deceased. Prime Lawyers can help you determine the chance for you to successfully dispute an estate.
Methods to challenge a will
There are two ways in which you can challenge a will. They are the following:
1. Challenging the validity of a will
The basis of this challenge is usually one of the following:
a. The will is a forgery;
b. The will does not comply with formal requirements for a will; and/or
c. The will maker (testator) did not have the capacity to make out a will.
2. Rewriting will
Under the Family Provision Act the court has the power to rewrite a will. The court does this by making an order for provision in favour of an eligible person out of the estate of a will maker (testator) if:
a. The testator left the person out of their will; or
b. The testator did not make adequate provision for the person in their will.
What is an order for provision?
This is an order that the claimant (the person disputing the will) be given either:
1. A monetary amount; or
2. A specific asset.
out of the estate of the testator.
An order for provision has the same effect as if it was written in the original will, meaning the court effectively rewrites the testator's will.
Who can apply for provision?
To be able to apply for provision you must be an eligible person defined in the Family Provision Act. People who automatically qualify as eligible persons are:
People who only qualify if there are good reasons to apply for provision:
(a) Dependant on the testator; and
(b) Lived in the same household as the testator at any time in the past.
What must an eligible person show?
An eligible person only has the right to apply for provision. This does not mean they are guaranteed to get something. To receive an order for provision, an eligible person must show that he/she has been left without adequate provision for their maintenance, education and advancement in life.
What is adequate provision?
There is no “hard and fast” rule or formula for what is adequate provision. In practice, lack of adequate provision is usually established by showing financial need.
How much will I get?
Again there is no set formula for working out what order for provision the court should make. In deciding what order to make, the court looks at all the facts of the case, particularly:
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The needs of the eligible person;
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The needs of other beneficiaries of the will;
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The size of the estate (including notional estate);
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The contribution the eligible person made to the testator (financially and otherwise);
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The relationship between the testator and the eligible person; and
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The “moral claim” of the eligible person.
How long do I have to apply?
You have eighteen (18) months from the date of the death of the testator to apply to dispute an estate. This can only be extended with permission of court – if there are good reasons for not applying within the limitation period.
Legal costs
If you win, about 50-75% of your legal costs are usually paid out for by the estate, the rest will need to be paid from the proceeds of your claim.
If you lose, your legal costs are not paid for by the estate and you may be ordered to pay the estates legal costs.
The process
1. We investigate your claim and advise you whether we think you have a good claim and if you do we will file an application for provision and supporting statements (affidavits) at the Supreme Court.
2. There are then 2 or 3 housekeeping mentions before the court.
3. The executor of the estate provides their statements (affidavits).
4. We provide affidavits in reply.
5. If the matter does not settle out of court, it goes to a court hearing and the court hands down its decision.
How long will it take?
Most matters settle out of court in a few months. However if no out of court settlement is reached, the court process usually takes 9-12 months
What can Prime Lawyers do for me?
Contact one of our estate lawyers on (02) 9521 2222 and we can determine how strong your claim is. We can investigate your claim and advise you on your prospects of succeeding in a challenge to the will. You can also send your enquiry online now and a member of our legal team will contact you shortly.