Contesting a Will is when valued members of the deceased's family feel they were unfairly left out of a Will or not adequately provided for. The contents of a Will can be challenged in Australia by law if there is a good reason.
Contesting a will in Australia, by contrast, occurs when someone asserts that they have not received adequate provision in the will. To successfully contest a will, a person must demonstrate financial need, and establish that in light of this need, the deceased should have made greater provision for them.
The time limit to contest a will in the Australian Capital Territory is six months from the date of probate. The court can only make an exception under the Family Provision Act 1969 for a late Family Provision Claim if it judges that there is sufficient cause.
Who can contest a will? Theoretically, anyone can challenge a will, whether that's a sibling, or someone who doesn't appear to benefit on first glance, but may be a residuary beneficiary. However, contesting a will is not something you should consider without good reason.
Studies have shown that contesting of Wills in Australia has an average of 74 percent of Family Provision Claims in Australia which are successful. The success rate in Queensland is even higher at 77 percent.
If the matter goes to court, the average cost to contest a will is about $20,000 – $100,000. Most lawyers charge $300 to $850 per hour. The average cost for a family provision claim in NSW that is finalised is about $30,000. But, if you go to court, the cost can be more than $50,000.
Contesting a will is time is worthwhile if you believe you are entitled to more than you received. The process can take an emotional toll but it is important to remember that there can be major long-term benefits of contesting a will.
Precautions you can take to avoid a contest
To prevent a contest to your will, make sure your will is executed properly and that you take all the precautions your attorney suggests to avoid any chance of a contest. It is also a good idea to talk to your heirs about what is in your will and why.
You're completely within your rights to exclude someone from your will. You're free to do so for any reason at all, or no reason whatsoever. However, before you make your final decision: Take your time – disinheriting someone has consequences.
Sibling disputes over assets in a parent's estate can be avoided by taking certain steps both before and after the parent dies. Strategies parents can implement include expressing their wishes in a will, setting up a trust, using a non-sibling as executor or trustee, and giving gifts during their lifetime.
It is possible to contest a will on the basis of a lack of knowledge and approval even if the will appears to be validly executed and the testator had mental capacity. It must be shown that the testator was not aware of the content of the will or that there were suspicious circumstances.
Can a sibling contest a Will? A sibling cannot contest a Will unless they lived with the deceased and were wholly or partly dependent on them. But they should speak with a lawyer first.
An executor can make changes to a will if the beneficiaries of the estate give express permission. As such, an executor can ignore the terms of a will if the beneficiary will sign a deed of family arrangement/deed of variation.
In New South Wales, the overall success rate of contesting a will is approximately the same as the national average, about 76 %. As mentioned, NSW also has the highest number of family provision claims in the country and is responsible for around 60 % of all contested estates.
If you marry or register a relationship this automatically cancels an existing will. If you divorce or end a registered relationship, any gift or power you have given to your former spouse or partner is cancelled.
Disinheriting a child in a will in Australia is possible, but not necessarily straightforward. Australian law gives its citizens the freedom to draw up a will that nominates who their estate will be distributed to upon their death, but are their children necessarily included?
Unless you jointly owned the property with your parents, you will need to apply for probate to give you the legal right to take possession of it. The probate process varies depending on whether or not your parents left a will.
If you wish to exclude a child or other family member from your will, your solicitor will ask you for detailed reasons for this decision, which should be documented in writing in a note or letter.
There is a common misconception that, as a child, you are automatically entitled to receive something from your parents' estates. In fact, there is no legal obligation on a parent to provide for their child, or children, after they die and when they are making a will.
Making a claim on an estate when there is a Will
Any children, estranged or otherwise, are entitled to make a claim on their parents' estates if they feel that they have not been sufficiently provided for in the Will. To make a claim on someone's estate, you must apply to the Court.
Anyone can contest a Will if they're worried it might be invalid. This is usually someone with an interest in the estate – if you were expecting to inherit and didn't, or if you were expecting to inherit more, or haven't been left enough.
Whenever contesting a Will, if your claim proceeds to trial, the standard order is that the winning party has their reasonable costs paid by the losing party.
Often, a sibling will start a dispute over an inheritance simply because they feel like their other inheriting siblings get unfairly good treatment compared to them. For example, they may feel like they deserve a bigger portion of an estate, or they may feel left out entirely.