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.
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.
Contesting a Will is when you have been left out of Will, or feel you have been treated unfairly by the Testator within their Will. Therefore you launch a family provision claim. To challenge a Will is to dispute a Will, or to say that the Will itself should be struck out.
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.
Costs to defend a contested will
There is a common misconception that the costs of a claim will automatically come out of the estate and this is not necessarily correct. The judge has a discretion and the usual rule follows that the losing party pays the successful party's costs.
The usual rule is that the loser pays the winner's legal costs. This is often called the “costs follow the event” principle. It is in the Civil Procedure Rules at rule 44.2(2).
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.
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.
To ensure that the will remains unchallengeable, it must be certain in terms of its objects, as far as possible clearly identify the property to be bequeathed, and name the beneficiaries on whom the property will devolve upon the demise of the testator (i.e., the person making the will)."
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.
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.
Generally speaking, in claims to challenge the validity of a Will, there is no time limit. However, if a person delays in bringing their claim then the court may hold that as a result of this delay the person is no longer entitled to bring the claim.
A Will can be challenged if it unfairly leaves someone out. There are 3 main types of claim that can be made when you are left out of a Will: If you were part of the family of the person who died then you might be able to challenge the Will for failing to make reasonable provision for you.
Unfair Will Example: Contributions
A will might also be unfair if it gives no consideration to the contributions that someone made to either the deceased estate or the welfare of the deceased and family.
When it comes to the process of contesting a will, there is no legal requirement for a solicitor to be instructed. There is absolutely nothing stopping someone from dealing with a will challenge.
The entire will or codicil can be thrown out. If there is an earlier will in existence, that will could be put into place instead. If there is no other will, assets could be distributed by the court according to state intestacy laws, rules applied to divide an estate when there is no will.
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.
Solicitors' probate fees are usually calculated as between 2% to 5% of the value of the estate, plus VAT.
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.
As a beneficiary, you technically don't have any “rights”. What you do have is the ability to force the executor to perform their duties to the estate. Their duties include, among other things, obeying the valid terms of the Will and acting reasonably when handling the estate property.
What is the definition of disinheritance? Disinheritance refers to the manner in which a person who might otherwise have received a gift from a loved one's estate is left nothing. A common example would be where a parent leaves a child out of their will and trust, for whatever reason, or no reason at all.
The beneficiary
Accordingly, it is open for a beneficiary to defend and oppose a claim.