Even Taylor Swift has experienced estate planning nightmares. In her song ‘Anti-Hero’, Swift highlights the importance of considering who should benefit from your estate when you’re gone, and locking those wishes down in a water-tight will to avoid future conflicts.
🎵 I have this dream my daughter-in-law kills me for the money, she thinks I left them in the will🎵
Wills can be tricky, and they’re something many of us don’t think about until later in life (or until it’s too late). So if you’re considering writing or contesting a will, or want to ensure Taylor’s dream doesn’t come true for you, this article provides essential information on will disputes by outlining eligibility criteria, the process, potential costs, and important timeframes to consider.
What Does Contesting a Will Entail?
Contesting a will or an estate involves challenging the contents or validity of a deceased person's will. This can arise either when a family member of the deceased has been excluded or inadequately provided for, or the validity of the will is challenged because of various factors including undue influence or testamentary capacity of the deceased.
Family provision claims allow eligible individuals as defined by the relevant legislation to contest a will if they have been unfairly excluded or not adequately provided for. Seeking legal advice is crucial when considering a family provision claim or if you are concerned about the validity of a will, as strict time limits apply and vary state by state.
Eligibility to Contest a Will
Eligibility criteria for contesting a will vary across Australian states and territories. Generally, eligible persons who can lodge a family provision application include:
- Spouses or former partners (where a property settlement has not been reached), including de facto partner relationships
- Children, step-children, and grandchildren
- Members of the deceased's household
- A dependant who was s significantly supported by the deceased
Common Scenarios That Lead to Contesting a Will
Excluding a Child from the Will
Each state and territory in Australia has specific legislation that allows a child to contest a will under certain circumstances. While valid reasons may exist for excluding a child, a well-thought-out estate plan can help mitigate the risk of a successful challenge.
Lack of Testamentary Capacity
Testamentary capacity refers to the mental capacity required when creating a will. Challenges can arise when the will was made shortly before the person's death, the testator was mentally ill, or if they were isolated from loved ones during the signing. Medical assessments at the time of will preparation can be crucial in proving testamentary capacity.
Undue Influence
Elder financial abuse is a growing concern, particularly in the context of wills. This occurs when a vulnerable family member is influenced or coerced by another person to change their will or transfer property during their lifetime. Australian courts have the power to set aside such transactions if undue influence is proven.
The Process of Contesting a Will
The process to contest a will involves several steps, including:
- Determining your eligibility as an eligible person under the relevant legislation
- Notifying the executor of your intention to make a claim
- Presenting evidence of financial need and seeking provision from the estate
- Attempting negotiation or mediation to resolve the dispute
- Commencing court proceedings if a resolution cannot be reached
- Participating in a private mediation to attempt to resolve the dispute with a mediator
- Proceeding to trial in the relevant court before a judge.
Avoiding Court in Will Disputes
While court proceedings may be necessary in some cases, many will disputes are settled through negotiation or mediation outside of court. Settling through mediation can save significant legal costs and time and is our preferred approach. Sometimes however, court cannot be avoided and we will be prepared to fight for your rights if that eventuates.
Time Limit to Contest a Will in Australia
The time limit for contesting a will varies by state and territory. It is essential to adhere to these timeframes:
- NSW and ACT: 12 months from the date of death to lodge a claim in court
- Victoria: Six months from the date of the grant of probate to lodge a claim
- Queensland: Six months from the date of death to notify the executor and an additional three months to lodge a claim
- Northern Territory: 12 months from the date of the grant of probate to lodge a claim
- Western Australia: Six months from the date of the grant of probate to lodge a claim
- Tasmania: Three months from the date of the grant of probate to file a claim
How Long Will It Take to Settle a Will Dispute?
The duration to settle a will dispute depends on the complexity of the case and the parties willingness to negotiate. Generally, settlements outside of court take around six months, while court hearings can take up to two years.
Who Pays for the Legal Costs of Contesting a Will?
In family provision cases, if a claimant is successful, their costs are typically paid from the estate. However, if the claimant is unsuccessful, they may be responsible for their own costs as well as the estates.
Protect Your Interests When It Comes to Wills and Estates
Contesting a will requires a comprehensive understanding of the legal process, eligibility criteria, and potential outcomes. BlueRock’s estate litigation lawyers offer initial consultations at our office, over the phone, or through Zoom. By seeking expert legal guidance, you can protect your rights and navigate the complexities of contesting a will. Safeguard your inheritance and secure the provision you deserve by taking informed steps sooner rather than later and seek legal advice from experts who live and breathe will disputes.ch
