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.
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.
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.
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.
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 Will can also be cancelled by changes in your personal circumstances such as marriage or starting a de facto relationship, separation, divorce or ending a de facto relationship.
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.
Who pays to contest a will in Victoria? In most cases, the person who makes a claim against a deceased estate is responsible for their own legal costs. As for the costs for the defending party, these are usually borne by the estate itself.
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 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.
'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.
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.
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.
In New South Wales a claim must be lodged within 12 months of the date of death. In Victoria I claim must be lodged within 6 months of a grant of probate. In Queensland a claim must be lodged within 9 months from the date of death however notice of the claim must be given within six months from the date of death.
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.
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.
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.
If you want to use a solicitor to be your professional executor always ask how you'll be charged – some solicitors will take a percentage of your estate to pay for any bills. Others will charge for their time.
Routine Telephone calls are charged at one tenth of the hourly rate.
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 NSW, the answer can be found in section 54 of the Succession Act 2006 (NSW). Section 54 provides that a person who has possession or control of the will of a deceased person must allow certain people to inspect or be given a copy of the will upon request at their own expense.
The right to be informed of any expected delay in the distribution of the estate. The right to be told of any contests or challenges to the deceased's will which may potentially affect your share of the estate. The right to know about any legal proceedings against the deceased.