Back to Personal

Disputing a Will

Our Estate Litigation Team is here to help you navigate the process of challenging a Will, from explaining the grounds for contesting a Will through to making a Family Provision claim.

If you have been left out of a Will or without sufficient provision, we will help you understand your legal rights and options to contest the Will, including the financial and non-financial advantages and disadvantages of each option.  We have a team of specialist estate litigation solicitors with extensive experience in dealing with disputed Wills and estates.

Similarly, our specialist team can help an Executor of a Will or Trustee of a deceased estate deal with a claim being made against the Will or estate, as well as advise other beneficiaries of a Will or estate being contested.

What we do

  • Understand the facts and surrounding circumstances of your situation, whether that be wanting to contest a Will or estate, or being involved in a contested Will or estate as an Executor, Trustee or beneficiary.
  • Consider your legal position based on the current state of relevant law, and determine the best strategy to protect your interests and resolve the dispute.
  • Deliver advice in plain-English about your legal position, options for the next steps and our recommendations tailored to your situation and based on our expertise.
  • Negotiate at any time with other interested parties in the Will or estate to resolve the dispute as efficiently as possible, whether the negotiation be formally by mediation or informally by communications between the parties and their lawyers.
  • Prepare and run court proceedings (litigation) for you, including appeals.
  • Prepare and help you execute documents recording and giving effect to any settlement reached between the parties or court orders.

The MV difference

  • A focus on resolving disputes as quickly and efficiently as possible, including out of court.
  • A focus on practical and commercial plain-English advice borne from real-life experience by our lawyers with true passion for this area of law.
  • A commitment to collaborating with you, your representatives and expert advisers to know you, and implement the best strategy to protect your interests and resolve your dispute.
  • Frank and fearless advice to you about the prospects of success on your claim, or the likely outcome of the dispute.
  • Full and frank disclosure of all legal costs to ensure a properly informed decision to contest a Will or estate is made, and to avoid unhappy costs surprises during the course of the case.

FAQs

Do I have to go to court to challenge a Will or can I do it out of court?

Estate disputes can settle outside of court through mediation or even informal settlement conferences between the parties (and their representatives).

Mediation is a formal process where all parties attend a conference, overseen by an independent mediator, with the objective of resolving the dispute over the Will or deceased estate.  If an agreement is reached at mediation, the court will often grant orders that give effect to the agreement.  If an agreement is not reached at mediation then the dispute goes on for a hearing before a court.  Litigation can be settled at any time prior to a court handing down a judgment.

In addition to, or alternatively, a dispute can be settled by an informal settlement conference between the parties or even by correspondence between them.  As with mediation, an agreement reached between the parties can be given effect (that is, ordered) by a court.  If no agreement can be reached by any means, then the dispute goes to hearing before a court.

Who can contest a Will in the ACT?

In the ACT, the persons who are eligible to make a claim against an estate may include:

  • the deceased’s partner;
  • the domestic partner of the deceased;
  • the deceased’s child;
  • the deceased’s stepchild;
  • the deceased’s grandchild; and
  • the deceased’s parents.

Not all of these people are automatically eligible to make a claim – there are factors that must be satisfied to ensure eligibility.

When considering whether or not an applicant is a ‘domestic partner’ of the deceased, a court considers whether or not there existed “a personal relationship between the applicant and the deceased” in which one provided personal or financial commitment and support of a domestic nature for the material benefit of the other.

If you are a former partner of the deceased, you are not explicitly considered an eligible person in the ACT.  However if you were in a relationship with the deceased for a specified period of time, or had a child with the deceased, you may be eligible.  Conversely, in NSW, former wives or husbands of the deceased are considered eligible applicants.

How long do I have to contest a Will the ACT?

In the ACT, once Probate or Administration has been granted to the Executor or Administrator, you must make a claim against the estate within six months of this grant.  In NSW, you have 12 months from the date of death.

A court has the discretion to grant an extension of time if you intend to make a claim for further provision after the above time periods have lapsed.

What does the court consider?

If someone is eligible to make a family provision claim, the court looks at various elements of the deceased’s and claimant’s life to decide if the claimant should get anything, including:

  • the nature and duration of the relationship between the deceased and claimant;
  • the respective incomes and financial positions of the deceased (before death) and claimant;
  • how healthy (physically and mentally) the deceased was (before death) and the claimant is; and
  • who else might be eligible or want a distribution from the estate.

A court is not concerned with what is ‘fair’ (for example: because there are three children, does not mean the estate will be split three ways).  A wide variety of factors are considered.  For example, a court cannot make an order about distributing money or assets from an estate based on fairness alone.

Resources

Related e-briefs

Challenging a Will—do you stand a chance?

Where there's a Will, there's a way… to determine capacity