Contesting a will can be a traumatic, upsetting and stressful process for all involved parties. Making sure you have the right information and the proper support is essential to achieving your desired outcome.
Why do people contest a will?
A will contest can occur for a number of reasons. On occasion, it can be arguments over whether or not a will is genuine or if the person had the legal and mental capacity to understand what they were doing when they made their will. Other times, there are inconsistencies between verbal promises made and what appears in the will. Another common reason for a will contest is that the executor of the will is not doing their job properly.
How to dispute a will
In New South Wales, the Supreme Court is the governing body with the jurisdiction to deal with disputes over deceased estates and wills. Applications must therefore be made to the Supreme Court of New South Wales to resolve any such issues.
There are three ways to resolve a will dispute. These are:
This is an arrangement between you and the executor. Your lawyers will help you broker a deal and if you accept the offer, you will not be required to attend court.
Mediation is compulsory in all will dispute cases. During mediation, your legal team will work with an independent and neutral mediator and the other party to reach a resolution. Most will dispute cases are resolved during mediation.
This is the last resort when it comes to contesting a will. If a resolution can’t be reached in mediation, then your legal team will present evidence and arguments in front of a judge to determine the result. A judge will then make a decision as to how much you are entitled to from the will.
When can you dispute a will?
Will dispute regulations differ from state to state but across the country there is generally a time limit for pursuing a will for inheritance. In NSW, you must do so within 12 months after death, in Queensland it’s 9 months and in Victoria it’s 6 months after probate. If you are considering contesting a will, it’s therefore important to contact a lawyer as soon as possible.
Picking the right lawyer for a will dispute
When it comes to contesting a will, you need to make sure you are represented by experts in this field. The first thing to check is whether they specialise in wills and will disputes. Large law firms may have expertise across a number of areas but the right firm for you will have a lawyer or a team of lawyers who specialise in wills & probate.
Secondly you should look at how much experience they have with will disputes and thirdly, their success rate. A good lawyer who can dispute a will should have a proven track record. They should be able to give you advice and information based on recent cases as well as from decades of experience.
Disputing a will can be an extremely emotional process for all involved parties. Dragging a will dispute case on for too long will result in big legal fees which may cost you a large portion (or even all) of the estate value. It is therefore important to try and keep your emotions out of the decision making and try to achieve the most practical and financially sensible solution for all involved. Good lawyers will be able to navigate this for you and help you reach a compromise and resolution in a timely manner.
Questions to ask your lawyer
Before committing to a lawyer, there are a number of questions you need to ask to make sure they are the right lawyer for you. When disputing a will, you want to keep the process as short and efficient as possible. Remember that a court hearing is costly and should be a last resort. The ideal scenario is to reach an agreement or to resolve the issue through mediation.
When choosing a lawyer, you should ask the following:
- What experience do you have with will disputes? How many cases have you handled?
- Do you have references I can view from previous clients?
- How many of your will disputes are resolved through mediation and how many go through to court proceedings?
- Has the Court ever made an order that the legal costs incurred by your client, are to be paid by your client rather than by the Estate?
Information to gather for your estate lawyer
Once you’ve selected your lawyer, they will be able to guide you through the process and help you source the required information. This will include things like:
- Date of death
- Location of the deceased estate
- Approximate value of the estate and assets
- Your relationship to the deceased
- A copy of the will
- Details of the executor for the will
- Has probate been granted?
- Are you a named beneficiary on the will?
- Do you know of any other beneficiaries and potential competing claims?