If you’re thinking about contesting a Will, you probably have a lot of questions about how it works, whether you’ll have to go to court and what sort of outcome you can expect.
In most cases Will disputes settle out of court quickly and efficiently. This means that the details of your family dispute can be kept private.
What is probate?
Understanding probate is important when contemplating challenging a Will. Probate is the process of lodging a Will with the Supreme Court and asking the court to make an order that the Will is valid.
If you want to challenge the content of the Will (for example, you are unhappy with what the Will says because it doesn’t adequately provide for you) then you need to wait for probate to be granted before bringing your challenge.
However, if your dispute relates to the validity of the Will itself (because you don’t think the Will-maker understood what they were doing or because you think the Will was the result of undue influence) then you must bring your challenge before probate is granted. Once probate is granted, the Will is assumed to be valid.
Who can contest a Will?
In order to challenge a Will because you have been left out or because you are not happy with the size of your gift, you need to show that you are eligible to bring a challenge. You will need to that you had a close and significant relationship with the deceased, and that you were not adequately provided for in the Will.
In some circumstances you may still be able to challenge the Will even if you were estranged from the deceased. However, not everyone can challenge a Will. Most challenges are made by children and partners of the deceased; if you are not a child or partner of the deceased then you should seek legal advice about whether your circumstances make you eligible to bring a challenge.
When to contest a Will?
Even though a person has the legal right to choose who to leave their assets to, there are situations where the Will-maker’s wishes can be challenged. These include where:
- You are left out of the Will completely
- You think your gift is too small
- You do not think that it is the last Will
- The Will was not prepared correctly
- There is no Will and you are not happy with the way the law distributes the estate
- The Will was prepared under pressure, bullying or harassment
- Someone has tampered with the Will.
If you decide to contest a Will, you need to lodge an application with the Court within the required time frame. In South Australia the time frame is within six (6) months of the grant of Probate. It is a good idea to seek legal advice at this point because the law surrounding Will disputes can be complex and the time limits for bringing your challenge differ from state to state. Seeking legal advice early on in the process can also help you understand the laws that apply to the Will that you want to challenge.
Will I have to go to court?
Your claim will probably have to be filed in the Supreme Court; however, most Will disputes are actually settled out of court. This means that it is unlikely that you will have to appear at a trial.
We encourage our clients to seek alternative dispute resolutions, such as negotiations and mediations rather than pursuing the matter through the Courts. Going to court can be costly, stressful and time-consuming and may not always lead to the outcome you want. Going to court should always be the last resort.
Out-of-court settlements save time, stress and money. Resolving your dispute out of court also gives you far more control over the case and the outcome. The negotiations also allow everyone’s point of view to be heard in a less formal setting. This can sometimes help reduce tension or emotional distress between disputing parties. What’s more, it’s all done behind closed doors, so you won’t need to air any dirty laundry in the courtroom.
Will I be successful?
When the considering a claim for further provision the following factors are relevant:
- The nature of your relationship with the deceased.
- How long you knew them.
- Whether they had any responsibility towards you.
- How much you earn and what your financial needs are.
- If you made any contributions to the welfare or estate of the deceased.
- Personal details, like your age and general behaviour toward the deceased.
The above factors and many others will all be considered when making a claim. You will have to show why you feel that you are entitled to a greater share of the estate, in some cases (such as a child being completely left out of the Will) this may be quite easy; however in many cases it can be difficult.
All you really need to know before you challenge the Will is whether you have a case. To help you figure this out, call Mantzoros & Partners on 08 8396 3143 so we can help you understand your legal rights and get the best possible result.