We answer your questions
Challenging a Will
What does the phrase 'challenging a will' mean?
‘Challenging a will’ refers to challenging the construction, interpretation or the validity of a will made by a person. There are established and well-known reasons for challenging a will which include:
Undue influence (rarely successful);
Lack of mental capacity such as dementia or cognitive deficits.
On what grounds can you contest or challenge a will?
Who can challenge a will?
Beneficiaries named in a previous Will;
Beneficiaries named in the current Will; and
Persons who would be entitled to the estate if there was no Will (that is persons entitled under intestacy)
How do you challenge a Will?
If my challenge is successful, what will be the outcome?
Remember, challenging a will, usually done when the person making the will was under pressure or suffering an illness, is different to contesting a will. If you successfully challenge a will, the will itself would be struck out. This means that the will you challenged will no longer exist and distributions will be done in accordance with the second last will.
Can I challenge a will if I believe it was forged?
Yes. The onus of proving fraud will fall on you, the person alleging the fraud. You will need evidence to back-up your claim.
Can I challenge a will if I believe there was undue influence?
Yes. If you believe that is the case, the onus will fall on you to prove to the court that the will was indeed made under undue influence. However, challenging a will on such a ground is difficult to prove to the court.
Contesting a Will
What does the phrase ‘contesting a will’ mean?
‘Contesting a will’ usually refers to where a person applies to a Court under family provision legislation for part, or a larger part, of a deceased person’s estate on the grounds that they haven’t been adequately provided for by the deceased. Such an application is not about setting aside or challenging the deceased’s last will.
Can a parent contest their child's estate?
Yes, in certain circumstances a parent can bring a family provision claim against their own child's estate. It is not common, but it is not uncommon.
Can I contest the deceased estate if there is no will?
Yes. There is no requirement for the deceased to have made a will before you can bring a family provision claim.
If my partner's will is being contested, what options are available to me?
Legal advice will be essential for you in this case. Please get in touch with our legal experts.
Can a non-eligible person contest a will?
No. In New South Wales, you must be an eligible person in order to successfully contest a will.
If the date of death is uncertain, how much time do I have to file an application to contest a will?
The court will determine a date and time of death in a reasonable fashion. You will then have 12 months from the date of death the court determines to file an application to contest a will in New South Wales.
What happens if I miss the time limit to contest a will?
In NSW, there is a strict time limit of 12 months after the date of death to file an application to contest a will. If you miss this time limit you may still be able to make a claim if an exception applies to your situation.
What do I need when preparing to contest a will?
Any evidence that proves your claim will be helpful. This may include the most recent copy of the will, medical reports, and names of witnesses who can testify to specific details. Further evidence will, most likely, be needed in which you should discuss with your legal representative.
What happens when a beneficiary is silent in a contested will claim?
The court will infer the beneficiary has adequate resources for advancement in life and that the beneficiary does not wish to put forward a competing financial claim.
If I am in prison, can I make a contested will claim?
No. However, you can make a contested will claim if leave of the court is granted on application.
If I successfully defend a contested will, do I have to pay the plaintiff’s costs?
No. Generally, a court will not make a successful defendant pay the costs of the unsuccessful plaintiff.
I am the child of the deceased, but I have a history of separation from them. Will this negatively impact the outcome of my will contest?
The fact that you are an eligible person and that you reasonably need more financial support is not in itself sufficient to successfully contest a will. So, the court will ensure a full investigation into the facts and circumstances of the matter is carried out to determine whether the community would expect the testator to provide, or further provide, for you in their will given your history of separation.
If I am in a homosexual relationship and was left nothing in the will, can I successfully contest the will?
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.
What type of claim do I choose from when I want to contest a will?
Does a widow, who is also the beneficiary defending a contested will, need to prove they are entitled to receive the assets of the estate?
No. The onus is instead on the plaintiff to prove that provision for the proper maintenance, education and advancement in life is not available under the will.
What do I do if my contested will claim fails?
You can appeal the decision by way of a rehearing. This does not involve the Court of Appeal completely re-considering the matter. Instead, the court will look at the decision that you are appealing.
Can I contest a will if I have a criminal record?
Yes. Having a criminal record will not prevent you from making a claim.
What is probate?
Probate is a legal process that is sometimes required to validate a deceased person’s will in order for their wishes to be carried out by an executor named in the will. The executor is the person responsible for administering the deceased person’s estate, ensuring debts are paid and remaining assets are distributed.
Do I need Probate (or Letters)?
Can probate be challenged?
Yes, probate can be challenged if you are claiming or contesting the validity of a will. This is very different from a family provision application.
What is the main piece of legislation relating to wills in NSW?
The Succession Act 2006 (NSW).
What happens if the deceased person didn’t have a will?
How do I get a copy of the last will of the deceased?
The rules in each State provide that the person who holds a will must provide a copy of the will to certain people if requested to do so. Generally, people entitled to obtain a copy of the will are those who are named in the will or named in a previous will or who are otherwise entitled to bring a family provision claim.
What happens if the will of the deceased is found to be void?
If the deceased person's will is found to be void or invalid, generally, the previous will shall be found to be the valid will. If there is no previous will, the rules of intestacy will apply.
How do I write my own will?
Dormers does not recommend anyone writes their own will.
Why should I have a will?
If you don’t have a will, then you have no executor and therefore, no one is authorised to represent your estate once you die. An application for Letters of Administration can also cost thousands of dollars and there is complexity around the process. The other thing to remember is that someone you don’t even like or know could end up being your Administrator. If you leave a will, then you can say who manages your estate when you die.
But I don’t have any assets, what’s the point in having a will?
These days, everyone at least has superannuation so there is some risk that may fall within notional estate, in NSW at least. Most super policies also contain life insurance, which can be substantial. This can become part of your estate in some cases.
Can I dispute a family member’s will when I received less than I expected?
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 a person writes a suicide note before they commit suicide, will that note be considered a valid will?
Most likely, yes. Just because a document is considered a suicide note does not mean it cannot also be considered as the deceased’s will. The court will consider several factors in order to conclude the deceased did intend for the suicide note to be their will. For example, the court will look to whether dispositive language was used on the note, such as “I wish to give you all my belongings”, whether the making of the document was on a solemn occasion and whether the deceased took steps to ensure the note would be noticed by other people.
Can I expect all my siblings will be treated equally in our parent’s will?
What is the first thing you should do when a relative dies and you think you may be in the will?
Ask someone close to the deceased whether the deceased left a will;
If the deceased left a will, ask for a copy of it;
If they refuse to give you a copy of the will, ask who the executor is;
If they tell you the executor, you can ask them for a copy of the will or whether you are in it;
If they refuse to tell you the executor, get in touch with us and we will assist.
What is testamentary capacity?
understand the nature of making a will and the effect of making a will
understand, at least in general terms, the nature and extent of the property of which they are disposing
be aware of those who might be thought to have a claim upon their testamentary bounty
have the ability to evaluate and discrimination between the respective strengths of the claims of such persons
Do I truly have testamentary freedom?
You are free to set out your wishes and how you would like your assets to be distributed after death in a will. Such a freedom, however, is not absolute in Australia.
What are mutual wills?
What is the difference between a “normal” will and mutual wills?
Usually, normal wills are revocable. That means it can be cancelled and you can make a new one. However, mutual wills can only be revoked while both parties are still alive, have capacity, and when there is agreement between the parties. Therefore, mutual wills contain an express or implied agreement not to revoke the will after the death or incapacity of either party.
What is an example of a mutual will?
When would I be involved in a mutual will?
Are mutual wills confined to husbands and wives?
No. Mutual wills can be made between any two people who wish to bind each other to an estate plan.
What happens if one party breaches the mutual will?
If your surviving spouse breaches the mutual will, you can reply on the mutual wills contract to obtain some type of compensation.
Can you give me an example of how a mutual will would work?
Imagine Clare and John are married. They each have a daughter from a previous marriage. They make wills to agree to leave their assets to each other. In such wills, they agree the estate of the surviving spouse would be equally divided between Clare’s daughter and John’s daughter. John dies a few years later and his estate passes to Clare. At the time of John’s death, Clare’s estate is held on a constructive trust. (Constructive trust is an arrangement where a person holds property as the owner for the benefit of at least one beneficiary). This means that Clare must deal with the assets in the estate in the way that was outlined in the mutual will.
What is a family provision application?
What does proper maintenance, education and advancement in life mean?
How can I avoid a family provision claim being sought against my will?
Seek advice from a specialised lawyer who can inform you about how to prevent a family provision claim being brought against your will. A specialised lawyer will also be able to inform you of the people who may have a claim on your estate and what that means for you.
Can adult children of a deceased person bring a family provision claim?
Can grandchildren bring a family provision claim?
Are most family provision cases settled without the need to go to court?
In NSW, approximately 80% of matters are settled without a hearing. This is similar in Victoria and Queensland.
Are all family provision cases required to go to mediation in NSW?
Yes, it is now compulsory for all family provision matters in NSW to go to mediation before the matter is set down for hearing before a judge. Over 80% of matters settle at mediation and do not proceed to a hearing resulting in significant costs savings for parties.
What are the legal costs if my claim is unsuccessful?
If you are unsuccessful at the final hearing in Court, in most circumstances you will have to pay your own legal costs (unless your solicitor is on a conditional arrangement/ no win no fee engagement) and the legal costs of the estate.
What are the legal costs if my family provision claim is successful?
Do you need to live in the same State where the deceased lived?
No. The key factor is that the deceased or testor had assets in the State where you are going to commence legal proceedings. Otherwise, it’s a bit pointless.
How is a family provision claim commenced in NSW?
Can I bring a family provision claim after the estate has been distributed?
Can a stepchild bring a family provision claim?
Can a beneficiary bring a family provision claim?
Yes, a beneficiary may contest a will and claim further provision than that which is made for him or her in the will.
Can you bring a family provision claim after probate has been granted?
In short, yes. Although probate is not required before a family provision order will be made by the Court, generally most family provision claims are brought after probate has been granted or is in the process of being obtained.
Can you bring a family provision claim after 5 years?
Can you bring a family provision claim if the testator had dementia?
If the deceased leaves a small gift to a family member does that small gift stop that person from making a family provision claim?
In short, no. Leaving a small gift or amount of money to a particular person may not stop that person from bringing a family provision claim. Good try, but it is not that easy and you should seek advice from an experienced will disputes lawyer if you would like to look at structuring your estate. Please call us on +61 2 9098 5750.
What is Notional Estate?
What kind of property falls within an estate in family provision proceedings?
What does the court consider in determining your family provision claim?
your financial needs and circumstances (both current and future);
your character and conduct;
your relationship with the deceased;
any obligations or responsibilities the deceased owed or had to you or any other beneficiaries or competing claimants;
any financial or non-financial contribution you made to the estate or the deceased’s welfare when they were alive;
the size and nature of estate;
the financial circumstances of any other person living with you;
any disability you may have, whether physical, intellectual or mental and any other applicant or beneficiary;
your age at the time the application is being heard;
any provision or support made by the deceased to you during their lifetime or from the deceased’s estate; and
whether the deceased maintained you, wholly or partly, before his/her death and the extent to and basis on which the deceased did so.
How long does a family provision case take?
It often depends on the complexity of the case and number of parties involved in the dispute, but it is usually about 6 months in NSW and Victoria from the start to a settlement where it is mandatory for parties to attend court ordered mediation shortly after the commencement of Court proceedings. However, if parties cannot resolve their differences and have to run the matter to a full hearing, it can be anywhere from 18 months to 2 years for a court hearing. Some other states may be a little longer.
Do I need to go to court when bringing a family provision claim?
Who pays the legal costs in family provision cases?
How much will it cost to bring a family provision claim?
Depending upon the complexity of the case and the solicitor you choose, the costs can vary from a few thousand dollars in a small estate to a couple of hundred thousand dollars in a large multi-million estate. It just depends – not quite the answer you wanted but call us on +61 2 9098 5750 and we can talk more specifically with you.
Is there a time limit to contest a will (or make a family provision claim)?
Who can bring a family provision claim?
the spouse of the deceased at the time of death;
the de facto partner of the deceased at the time of death;
a former spouse of the deceased;
a child of the deceased;
a grandchild who lived with the deceased or who was dependent upon the deceased at any time;
a person who was at any time wholly or partially dependent on the deceased at any time and at any other time was a member of the deceased’s household;
any person living in a “close personal relationship” with the deceased at the time of their death.
If you have been left out of a will what should you do?
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;
Second, start gathering evidence about the estate if you know anything about it, your relationship with the deceased and your financial circumstances;
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.
What are the steps which Dormers will take to resolve your wills dispute?
How much do will disputes cost?
What are the main issues that most people experience when going through an estate dispute?
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.
Should I engage in any other services whilst going through the process?
You may like to engage counselling, financial assistance and family assistance services. However, this is not essential.
Is superannuation included in an estate?
Superannuation is not automatically included in an estate. This is because your super is held on trust by your provider for your benefit. However, if there are insufficient funds in the estate, in New South Wales superannuation may be included as part of the notional estate of the deceased.
If I am an ‘eligible person’ does that mean I am automatically entitled to receive a certain proportion of the estate?
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.
What is a cost capping order?
In will dispute cases, this is where the court may order a specific maximum cost that one party can recover from the other.
How do I get the house outright if I am the spouse of the deceased left with only a right of residence?
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.
How will the court determine how dependent I was on the deceased?
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.
What’s the difference between a lawyer, a solicitor, and a barrister?
Do I need a barrister and a solicitor?
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.
When would I need the services of a barrister for my will or estate dispute?
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.
What is the court's role in will disputes?
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.
What does the word ‘provision’ mean?
In the context of contesting a will, ‘provision’ refers to the different forms of support and assistance one can provide to another.
What Are Legal Costs?
Legal costs are the costs for the work carried out by a law practice and the disbursements incurred whilst doing it. Disbursements are the expenses incurred in order to undertake the professional work done and include: report fees, witness expenses, copying fees, court filing fees and expert fees.
What are Solicitor/Client Costs?
Solicitor/Client costs are the costs billed by a law practice to a client. They are generally calculated in accordance with a Costs Agreement, and are typically calculated on an hourly basis, however some legal services are offered at a fixed rate.
What are Party/Party Costs?
Party/party costs are the costs recoverable by one party to litigation from the other as a result of a court order or an agreement (it may be a term of settlement that one party pay the other’s costs). In litigation where costs are typically said to ‘follow the event’ this means that the unsuccessful party will pay the successful party’s costs.
What are Indemnity Costs?
Indemnity costs are party/party costs which are not calculated on the ordinary basis but rather at a higher level which are intended to indemnify (compensate) a party for their costs. They are only awarded or agreed in limited circumstances, and may apply from a certain date such as from the day after the service of an offer of compromise.
What are Regulated Costs?
Regulated costs (sometimes called maximum costs) are costs that are restricted by legislation and are commonly seen in motor vehicle accident or work injury matters. Solicitors often contract outside of these costs by entering into a costs agreement. It is not possible to contract out of regulated costs on a party/party basis.
What is a Costs Agreement?
A costs agreement is a written and signed agreement between a client and a law practice.
What is a Settlement?
What is an Offer of Compromise?
An offer of compromise is a type of settlement offer which must remain open for a stated period of time (usually 28 days). If an Offer of Compromise is accepted the parties will settle on the terms contained within in it, if it is not accepted, depending on the outcome of the matter, the Offer of Compromise may be relied upon at its conclusion to obtain certain cost orders.
I found Dormers to be understanding, prepared to listen and appreciate my position. I found Dormers to be dependable and honest. My case was settled quickly and easily after a short period of negotiations. My costs seemed fair and reasonable.