The most straightforward way to minimise the prospect of someone contesting your will is to make adequate provision for anyone who might otherwise successfully contest the will. It is not necessary to make equal provision for all beneficiaries, only to do what a reasonable testator would do in the circumstances.
The simple answer is that you can't ever stop someone contesting your will. This is because state and territory legislation across Australia allows 'eligible' people to make a claim against an estate if they can establish that they have not been adequately provided for in the deceased's will.
A person may contest a will if a testator unjustly excluded them from the will, or made inadequate provision for them. A person contesting a will does so through a claim to the Supreme Court known as a Family Provision Claim.
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.
How long do I have to contest a will in Australia? The time limit to challenge a Will in Australia is different depending on the state you live. NSW and ACT you have 12 months from the date of death to lodge a claim in court. Victoria you have six months from the date of the grant of probate to lodge a claim in court.
Determining the amount it will cost to contest a will in NSW can be a complicated process. The average cost to contest a will would be $5,000 – $10,000 if the matter stays out of court. If the matter goes to court, the average cost to contest a will would be $20,000 – $100,000.
If you're an “eligible person” or an “interested person” who is contesting a Will, legal costs may be paid by you directly or by funds from the estate depending on what happens in this order: whether the matter has been resolved during mediation.
The success rate of contesting a Will depends on a number of factors and if you are considered an 'eligible person'. But a report conducted in 2015 by The University of Queensland found that 74% of cases challenged in court, and 87% of those that went before a mediator, resulted in the Will being changed.
A testator will sometimes include a “no-contest” clause in a will in the hope of avoiding a Family Provision Claim. A no-contest clause typically states that anyone who contests the will forfeits their bequest. This type of clause is enforceable in some other countries but is non-binding in Western Australia.
A beneficiary can contest a Will if they're an “eligible person”. Otherwise, they 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.
Adult children can contest the will if they feel they've been unfairly left out by their deceased parent. If the matter can't be settled through mediation with the will's executor, then it will be up to the court to decide if they have a fair claim or not.
Once you notify us and provide at least one of the Proof of Death documents, then a permanent hold will be placed on any transaction accounts solely held by the deceased. This means: No money can be taken out of the accounts.
Australian law allows an eligible person to contest a Will after Probate has been granted and court order on asset and property settlement has been finalised.
In family provision cases, the general rule is the claimant's costs are paid out of the estate if their claim is successful. If the claimant is not successful, they can be ordered to pay the estate's costs as well as their own.
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. As a result, the applicant's financial situation is of particular importance to the application, as is his or her relationship with the deceased.
A grandchild can contest the will of their grandparent in almost every jurisdiction of Australia. However, most states and territories that designate a grandchild as an eligible claimant also require that the grandchild was dependent on the testator for some form of maintenance.
If one or more of the executors can't do their job, it is important to appoint a new executor as soon as possible. This can be done by contacting the probate court and appointing an executor. If there is no will, the court will appoint an administrator to manage the estate.
#1 Estrangement
In fact, the law in Victoria considers the financial needs of a child to be more important than any estrangement. An estranged child can dispute an unfair will even if they had little or no relationship with their parent before their death.
A “No Contest” clause means that a person agrees they will not make a family provision claim against a deceased's Estate.
'Contesting' usually relates to bringing a claim against the estate for provision, whereas 'challenging' is disputing the validity of the Will itself. They are subtle differences in the words used, but very different types of causes of action.
It usually takes an executor from nine months to one year to administer an estate. This time starts from the date they begin administering the estate. More complicated estates can take longer.
Lawyers or solicitors charge between $300 to $500 per hour for wills, and it depends on the complexity of your estate as to how much the total cost is with a solicitor.
There is no specific amount of commission an Executor is entitled to. However, the court will typically award a commission in a lump sum or percentage of the estate. Here is an estimate of the ranges: 0.25% to 1.25% of the value of transferred assets.
There can be serious consequences for an executor who acts fraudulently, including personal liability for any financial loss incurred through the misappropriation. In Australia, Supreme Courts have statutory power to revoke probate from someone who is found to have committed executor fraud.
A challenge to a will may be made because it is suspected there has been fraud or forgery, because the testator was subjected to undue influence, or because the will-maker lacked testamentary capacity.