In Australia, you can contest a Will after the grant of Probate is issued. However, the Executor must move quickly with contesting because it's almost impossible once the assets are gone. There are different conditions to contesting a Will depending on the state or territory.
Studies have shown that contesting of Wills in Australia has an average of 74 percent of Family Provision Claims in Australia which are successful.
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.
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.
The time it takes to contest a Will depends on the complexity of the case and the willingness of the parties involved. It generally takes about six months for settlements out of court and around two years for a court hearing.
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.
In most cases, contesting a will means that you pay all legal costs and other associated fees out of pocket, even if your case is unsuccessful. If you're contesting your father's will, for example, you could face costs of $2,000 or more.
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.
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.
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 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.
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.
Omitted Children: Rights and Intestate Share of Estate
As an omitted child, you are entitled to your intestate share of the estate regardless of what the Will states. There are a few exceptions, however, such as a Will that references an upcoming birth of a child, but states the child is specifically disinherited.
They must follow your wishes as set out in your Will and distribute your estate accordingly. Is there a limit to the number of executors I can appoint? You can appoint one or more executors. We always advise you to appoint more than one executor in case one of them is unable to act for any reason.
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.
The estate should not be distributed until at least six months after the date of death. This allows time for any claims against the estate. Before distributing the estate, the executor or administrator may publish a notice of intended distribution and pay the debts of the deceased.
For estates valued at less than $100,000, no filing fee applies. For estates valued at between $100,000 and $250,000, the filing fee will be $772. Estates valued between $250,000 and $500,000 will incur a fee of $1048. Estates valued between $500, 000 and $1,000,000 will incur a filing fee of $1607.
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 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.
Any parent, guardian or child of the deceased. Any person who would be entitled to a share of the estate if the deceased person had died intestate (without having made a Will).
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.
'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.
A Family Provision Claim is a method of disputing a will in court. You are eligible to submit a Family Provision Claim if you are related to the deceased or had a close relationship with them and have a demonstrated financial need that the deceased had a moral obligation to meet.