QN : 1-10
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?
On what grounds can you contest or challenge a will?
You need to understand at the outset that everyone has the right to decide who will inherit their assets after they die and generally there is no legal rule which says that a person must leave their assets to their children, friends or other family members. The law respects a person’s right to dispose of their estate as they see fit subject to some limitations. However, there are laws that allow certain people to contest or challenge another person’s will, or to make a claim against their estate, in certain circumstances.
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)
What happens if the deceased person didn’t have 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.
What is a family provision application?
Generally, a person may leave their possessions and money to any people or causes they choose. However, if one of their close family or dependants will suffer hardship as a result of their decision to give money or property to others, there may be grounds for that person to bring a Court action for provision from the estate of the deceased.
The Succession Act (NSW) 2006 allows the Supreme Court to award certain eligible persons a part of the deceased’s estate, even though the deceased made no provision or an inadequate provision for them in the Will. Family provision applications may be brought even if the deceased died intestate or without 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);
- Forgery; and
- Lack of mental capacity such as dementia or cognitive deficits.
It is different to a family provision claim and it does not ordinarily involve arguing about whether a person’s share under the will or lack of share under the will is fair or just or adequate for them.
Who can bring a family provision claim?
In NSW, the following are persons who may apply to Court for a family provision order:
- 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.
Is there a time limit to contest a will (or make a family provision claim)?
Yes, but it is different in each State. In New South Wales the time limit is twelve months from the date of death. In Queensland, you have 9 months from the date of death. In Victoria, you have 6 months from the date of death to bring a claim.
QN : 11-20
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 02 9098 5750 and we can talk more specifically with you.
Who pays the legal costs in family provision cases?
It varies slightly in each State. In NSW, in family provision cases, the general rule is the plaintiff’s costs are paid out of the estate if they are successful. However, if you are not successful you may be ordered to pay the estate’s costs.
The Court has a broad discretion to make whatever costs orders the Judge deems fit. In some circumstances the costs paid by the estate or any party can be capped or even fixed by the Court. This is particularly the case if the estate is a small one.
In NSW, an estate which is $500,000 or less is considered to be a small estate and as such at risk of cost capping orders.
Do I need to go to court when bringing a family provision claim?
Generally, yes. However, it depends upon the willingness of the parties to try and resolve their dispute outside of Court. If parties are keen to avoid legal fees from the start, it may be possible to organise an out of court settlement or mediation without actually even starting court proceedings or simply an informal settlement conference to resolve or even narrow the dispute to key issues. It’s up to you.
There are a number of different strategies available to resolve a wills dispute. If you would like more specific advice on the options which may be available to you, please call us on 02 9098 5750.
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.
What does the court consider in determining your family provision claim?
Every State has a different set of factors however the following list is a good guide for all States:
- 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.
What kind of property falls within an estate in family provision proceedings?
Generally, only assets, money or property that is owned by the deceased at the date of their death falls within their estate. For example, a deceased person at the date of their death does not own their superannuation or any jointly held property. This is because the trustee/s of the superannuation fund usually distribute in accordance with the fund rules and jointly owned property being property held as joint tenants (contrast to a property held as tenants in common) “evaporates” or is extinguished on a person’s death so the whole of the property goes automatically to the other joint tenant.
What is Notional Estate?
A family provision claimant usually makes a claim for provision out of property owned by the deceased at the time of his or her death. This is called the actual estate of the deceased. In certain limited circumstances, it is also possible to claim provision out of property which was not directly owned by the deceased at the time of their death or has been distributed – this is the notional estate of the deceased.
A notional estate order will only be made if a family provision order would already have been made and the deceased person left no actual estate, the actual estate was insufficient, there are other persons entitled to apply for family provision orders out of the actual estate, or there are special circumstances. Notional estate is a complex law and only applies in NSW.
If you would like more specific advice on notional estate, please get in touch with us at +61 2 9098 5750.
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 02 9098 5750.
How do you challenge a Will?
If you decide you wish to challenge or contest a Will because the Will is unfair, fraudulent, or undue influence was used on the testator when the Will was drafted, you should contact a solicitor for a consultation as soon as possible as time limits to your claim may apply.
During the consultation, the solicitor will request information from you such as your relationship with the deceased, the circumstances surrounding the drafting of the unfair Will in question, the contents of the unfair Will, and why you consider the Will to be unfair. The solicitor may also ask for additional documentation from you to assist in assessing the type and merits of your claim.
Can you bring a family provision claim if the testator had dementia?
QN : 21-30
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.
Can you bring a family provision claim after 5 years?
Yes it is possible to make a family provision claim after a period of five or even 10 years after death, however, you will need to have approval from the Court to do so. Generally a person must make a claim in NSW within 12 months from the date of death.
To obtain approval from the Court, you must convince the court that there was a special reason for not having made your claim within the relevant time limit and you must show or given a good explanation for your delay. If the estate has already been distributed before you lodge your claim out of time it will be even more difficult to secure the Court’s approval.
Can you bring a family provision claim after probate has been granted?
In short, yes. In NSW probate is required before a family provision order will be made by the Court and generally most family provision claims are brought after probate has been granted or is in the process of being obtained.
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 a stepchild bring a family provision claim?
Yes, a stepchild can in certain circumstances bring a family provision claim. A step child is required to demonstrate that the deceased owed them a moral duty and of course the applicant must also show a financial need for provision.
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 bring a family provision claim after the estate has been distributed?
If you have made your family provision claim within the prescribed time limit and your solicitor notified the executor or administrator of the estate of your claim, you will be able to make the claim and seek orders from the court which may need to include orders for a return of distributed assets.
How is a family provision claim commenced in NSW?
In NSW a family provision claim is commenced by filing a summons together with an affidavit (or statement) in support of the claim. Your solicitor would then serve the defendant in the proceedings (who is usually the executor or administrator) with the summons and affidavit.
Usually about 21 days after filing the summons, the Court will require your lawyer to attend court for what is known as a directions hearing and at that hearing the judge will normally set a timetable leading to a mediation of the claim.
It is now compulsory in NSW for all matters to be referred to mediation as early as possible. In our experience, over 80% of matters settle at mediation and a formal court hearing is avoided together with a significant saving in legal costs.
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.
What are the legal costs if my family provision claim is successful?
If your family provision claim is successful, it generally follows that your costs will be paid out of the estate. However, there are circumstrances which may change that ordinary rule which you will need to consider.
QN : 31-40
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.
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.
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.
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.
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.
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.
Can grandchildren bring a family provision claim?
Yes, grandchildren are entitled to bring a family provision claim in each State. However, there are special rules or additional requirements which must be met by grandchildren. Generally, a grandchild must have lived in the same household as the deceased or been financially dependent on the deceased.
Further, the Court must find that the deceased had a strong moral duty to the grandchild to provide for the grandchild out of his or her estate –so read here – they must have a pretty close relationship during the deceased’s life.
Can adult children of a deceased person bring a family provision claim?
Yes, an adult child of a deceased person is eligible to bring a family provision claim in each State in Australia, however will generally only be successful if they have significantly more financial need compared to other beneficiaries or have some form of disability or ill health which cannot be addressed through the provision made for them in the will.
What’s the difference between a lawyer, a solicitor, and a barrister?
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.
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.
QN : 41-48
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 ran, 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.
How much does this all cost?
Each matter is completely dependent on its own facts, and costs can differ substantially between matters. As a ballpark figure, though, in a family provision application, it could cost $25,000 – $35,000 to get the matter to a mediation. About 80% of matters settle at mediation.
If your matter doesn’t settle, then the next step is usually to go to court for a hearing. Trials are expensive and will cost a lot more but we can advise you of the risks and extent of exposure up front so you know the bottom line.
What are the main issues that most people experience when going through 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. Dormers understands 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.
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.
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)?
Depending on the type, size and value of the assets located in New South Wales, it may not be necessary to obtain a grant of probate in New South Wales. There is no statutory requirement to obtain probate in every case. But if property is involved then generally a grant is required. However, if no property is involved then sometimes an estate can be administered without a grant.
However, a lot of asset holders (e.g. banks, nursing homes) won’t hand over the money without a grant. If the estate is involved in litigation then a grant will be required.
"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."
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