The four main types of claim you can choose from are:

1. Family provision claim

This most common type of claim that you can choose from. It is where you believe you should receive more financial support from the deceased’s estate than what you actually received. To be successful in a family provision claim, you will need to demonstrate how the Will fails to provide for your proper maintenance, education and advancement in life.

2. Lack of capacity

Where you were a beneficiary on the Will, but you were later removed as the will-maker changed their will, you can argue that the deceased did not have the requisite testamentary capacity to make such a change.

3. Undue influence

This is where you can argue that the will-maker was under pressure by a person to make and sign a Will that is not in line with their wishes.

4. Breach of trust

You can argue there was a breach of trust if you are the beneficiary of a Will and you believe the executor is failing to correctly carry out the written wishes of the deceased.

If you have been left out of a will and you think this is unjust, we suggest that you take the following steps as soon as possible:

1. First, contact the executor and/or the solicitor acting for the estate (if there is one) and try to obtain a copy of the will;

2. Second, start gathering evidence about the estate if you know anything about it, your relationship with the deceased and your financial circumstances;

3. Third, contact a will dispute lawyer as soon as possible to get initial advice as to your options. It’s important to act quickly because there is a risk that the deceased’s estate could be distributed or transferred to someone else and there are also strict time limits which apply to contesting or challenging a will.

Would you like to talk to a will dispute lawyer who is an expert in contesting and challenging wills? If so, call us now on 1800 571 113 for a free initial consultation with a wills dispute lawyer AND a succession barrister.

When Dormers accepts to act on your case, being experts in the resolution of wills and all forms of family disputes, we will take care of the entire process for you - taking as much angst and stress out of what is often a highly emotional and stressful time.

We understand that loss of a loved one raises emotional issues and can often drag up painful memories which can sometimes extend back over many years. We also understand how difficult it is sometimes to stand up for yourself and fight for your true entitlements. We get it. We will handle your claim and concerns individually, respectfully and supportively.

The key steps are:

Step 1: You call us or meet with us, either in person or over the telephone or via Skype or Wechat to discuss the nature of your dispute or grievance and we tell you whether you have grounds to contest or challenge the will, or otherwise bring a claim against the deceased’s estate.

Step 2: If we think there are grounds for you to challenge the will or otherwise bring a claim against the deceased’s estate, we will arrange an appointment to meet with you to obtain more details regarding your claim at our offices.

Step 3: We will identify and then assess the size and nature of the deceased’s estate (and any competing claims) and then consider the best way to resolve your wills dispute.

Step 4: We will prepare the necessary court documents including the necessary evidence confirming your relationship with the deceased, your financial circumstances and current and future needs, and then file the relevant court documents on your behalf to formally commence legal proceedings.

Step 5: We will conduct your case in Court in a way which ensures that the dispute is finalised as quickly as possible and a minimum of costs and fuss. In this area, it is generally compulsory for all matters to go to mediation before significant legal costs are incurred which we think is a really good thing!

Litigation is emotionally draining and stressful. Estate litigation usually comes at a time when people are also grieving the loss of a loved one. Feelings of loss, hurt and betrayal can be heightened and many people also do not like having to deal with lawyers and barristers or face the possibility of a costs order which can of itself also be stressful. We understand these issues and will try and make the process as manageable by giving information and advice in a caring, professional and timely manner and as early as possible so you know the bottom line.

You may like to engage counselling, financial assistance and family assistance services. However, this is not essential.

Superannuation is not automatically included in an estate. This is because of the concept of notional estate in New South Wales. However, if there are insufficient funds in the estate for example, superannuation may be included.

No. Certain statutory conditions must be satisfied first in order to alter a deceased’s will. Firstly, you must qualify as an ‘eligible person’ (see Q&A on Family Provision: Who can bring a family provision claim). Secondly, the court will determine whether adequate provision of proper maintenance and support was provided to you under the deceased’s will.

There is no set rule. However, it is generally considered the duty of the testator to ensure their spouse is provided with an appropriate place to live after their death. A right of residence is usually considered an unsatisfactory way of providing accommodation to a spouse. This is because the spouse may need to leave the residence, for example due to sickness, and then the spouse will also be left without any protection.

The court will examine the whole relationship between you and the deceased. This examination will particularly focus on a consideration of past events and future probabilities.

A lawyer is a general term that refers to anyone who practices law. In Australia, there are two types of lawyers – solicitors and barristers.

• A solicitor deals with the day to day legal issues of their clients. Whilst they can appear in a court, they generally spend their day out of court.

• A Barrister is a specialist advocate, meaning they specialise in going to court and are often in court and know the judges. They specialise in litigation, and are the ones who also specialise in wills dispute.

For litigation, you don’t always need a barrister, but you do need a solicitor. If the matter is going to run to mediation or to a formal hearing, then generally a barrister would be briefed to appear for you. Your solicitor will discuss with you whether (and when) you need to engage a barrister. Often getting a barrister in early can save you time and costs.

Generally, a barrister is involved from the beginning of the matter and gives early advice on how a case should be run, what options are available to you and possibly some early advice on whether you have a case. Getting them in early can assist significantly and in fact save you money and angst.

In a disputed will case, the court’s role is to simply make adequate provision in all circumstances for the proper maintenance, education and advancement of life for the applicant. The court’s role is not to achieve a fair disposition of the deceased’s assets.

It will depend on the type of challenge. So, if you are accepting the validity of the will but seeking more money, you can contest the will by making a family provision claim. To do this, you must be an eligible person (see Q&A on Family Provision: Who can bring a family provision claim?).

If the only dependency that was shared in your relationship was that of an emotional dependency, then the court will reject your submission. This is because dependency cannot be based solely on the existence of an emotional relationship.