If your claim is successful, the court will generally rule that the estate must pay party/party costs or 'ordered' costs. This will usually cover about 70% of your solicitor/client costs. You will then need to pay the rest out of your allotted share of the estate.
However, the reality is that the vast majority (80-90%) of Will disputes are resolved during the mediation process and therefore who pays legal costs are negotiated between the parties in dispute. If you're an executor or beneficiary defending a Will, legal fees will generally be deducted from the estate funds.
The cost of contesting a Will in Australia is a highly variable matter. This variance will usually hinge on whether your case stays out of Court or not. For matters that stay out of Court, the typical costs range is $5000 – $10,000.
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.
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.
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.
Solicitors' probate fees are usually calculated as between 2% to 5% of the value of the estate, plus VAT.
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 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.
An executor cannot claim for the time they have incurred; however they are entitled to be reimbursed for the reasonable costs of the administration. What is the role of an executor?
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.
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.
If the Solicitors are acting as professional Executors then the value factor charge will be 0.75% of the value of any residence and 1.5% of the balance of the gross value of the Estate.
Most estate planning attorneys take on the responsibility of holding their clients' original wills and other documents. They do this for two reasons. First, they are often better equipped to keep the originals safe where they can be found when needed.
The result is that, even for a simple estate, it's likely to take three to six months for funds to be distributed after probate has been granted. For more complex estates, it can take even longer.
The time limit is only 6 months from the date of issue of the grant of probate or grant of letters of administration. Given this very short time limit it is really important that legal advice is sought immediately in order to ensure the claim is made in time.
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.
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.
In cases where it is not possible to resolve the situation within the family, your next step would be to seek advice from a solicitor who specialises in contentious probate. Contentious probate is the legal name given to the process where there is a dispute about a Will.
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.