A will, or a testament, is a document that expresses how a person wants their assets and real estate to be distributed after their death, and also states who will take care of the estate until it is finally distributed. Someone may contest a will for many different reasons, such as a suspicious change in the will moments before a loved one’s death or the will failing to meet legal regulations as defined by the state.
The process of contesting a will can be filled with nuanced terms, policies and actions that could make it difficult to succeed in filing, and winning, a claim. We will explore the details of challenging a will and the likelihood of winning.
What does it mean to contest a will?
Challenging a deceased person’s will means contesting the validity of their testament. This is typically done during the probate period after their death, and is known as filing a family provision claim. During probate, the court is in the process of distributing the deceased’s assets as they appear on the will.
To contest the will, you need to reasonably prove that the testator, or the person who has made a will, did so in error to some degree. Usually, a valued member of the family will come forward to challenge the will because they feel they were unfairly left out or inadequately provided for.
Several factors could also move someone to contest a will including:
- A will was grossly unfair.
- An unfulfilled promise was made to someone before probate.
- There is a clear error in the will.
- Family members, beneficiaries or dependents have unmet financial needs.
- The will-maker was subject to influence.
- The testator’s testamentary capacity is subject to question.
If you believe a will does not reveal the testator’s true intentions, you should feel empowered to come forward and make a claim. A will maker’s testamentary capacity could be challenged if the will was written at a sensitive time of mental lapses, or changed quickly close to the time of their death. Causes for this lack of capacity could include long-standing mental illness, dementia or Alzheimer’s disease.
You are eligible to contest the will before it becomes a public record if you are a blood relative of the deceased, a dependant, an heir or a legal partner. A person born outside of marriage is still eligible to file a claim. Ex-nuptial children have equal rights to children born within the family.
Knowing if you are eligible to make a claim is the first step towards succeeding in winning the compensation you deserve.
Success rates of contesting a will
Anyone who may have assets to win by contesting the will should contest it. Typically, the most successful claims are made by spouses under the grounds that the testator lacked testamentary capacity or was persuaded to write the will a certain way. Generally, those who win family provision claims are those closest to the deceased.
Challenging wills can be complicated, not only because of the legal process itself but also because family and close friends are involved. Challenging the will means also challenging someone else who was left an asset you believe is owed to you.
Typically, it’s important to seek legal advice first from compensation lawyers to help build your claim or to decide if you have a case. You should bring your lawyer evidence of why you believe an asset should have been left for you.
Evidence could include medical records of the deceased proving mental lapses if the will was changed suddenly close to their death, or conversations between you and the family member, promising you would be left with an asset. Anyone who falls within the category of eligibility, and was in regular contact with the deceased, should be able to establish a rightful claim to an asset.
Once you decide to come forward with the claim, it’s helpful to have a mediation session with a professional and the family members. This can help make the conversation productive and also document the interaction if it needs to be elevated to court.
If it does go to court, you will need to file a petition in the probate court in the region the testator lived.
Your chances of winning a contesting claim are high in Australia. The most recent study done on success rates of contesting a will comes from a 2015 report by the University of Queensland, Queensland University of Technology and Victoria University stating that 87% of the family provision will claims brought in front of a mediator resulted in a will being changed.
Find out how the success rate of contesting a will differs between states below.
The success rate of contesting a will in Victoria
After NSW, Victoria has the highest rate of total estate contests in Australia, at 1 estate contested per 293 395 people. Most of these fall into the category of family provision claims. If you are considering lodging a family provision claim in Victoria, you may be wondering what the success rate of contesting a will is in this particular state. According to a study by the University of New South Wales, the likelihood of successfully contesting a will in Victoria is 67 %.
At Gerard Malouf & Partners we have had many successful claims in Victoria for our clients. In this case study for instance, our client received an additional $350,000 from his wife’s estate, on top of what he already had received.
The success rate of contesting a will in NSW
In New South Wales, the overall success rate of contesting a will is approximately the same as the national average, about 76 %. As mentioned, NSW also has the highest number of family provision claims in the country and is responsible for around 60 % of all contested estates.
With a talented team on your side, you have an even greater chance of winning the case. Here are some of the best tips to ensure that you see success:
- Your claim must be brought within 12 months of the death of the deceased.
- Make sure that you are eligible to contest the will.
- Ensure that the deceased was domiciled in NSW.
- Be able to prove that the decedent had a duty to provide for you in the first place.
The success rate of contesting a will in Queensland
Despite the state having larger estates, there are in general fewer wills contested in Queensland compared to NSW and Victoria. However, the success rate of contesting a will in Queensland is the highest in the country, at around 77 %. Out of these, the majority of successful claims were made by a partner or an ex partner, followed by children to the deceased.
At Gerard Malouf & Partners we have helped many of our Queensland clients get the justice they deserve. One of our clients contacted us for advice on contesting a Queensland Estate after his mother had passed away without leaving a last Will and Testament. Through mediation, our client received a compensation of $120 K.
Compensation you can expect
Winning inheritance disputes can be both rewarding and expensive. It’s important to weigh the legal fees and how much compensation you expect to win before getting started.
How much you can expect to win will depend on what assets you are claiming. The cost of filing a claim can vary and depends on the law firm you choose to work with. Gerard Malouf & Partners is a no-win, no-fee office, meaning that if you don’t win the case, you won’t have to pay a penny in lawyer fees. If the matter is escalated to a hearing, however, the court fees can range between $20,000 and $100,000, which includes mediation, hearing fees, finance fees and other charges.
In most family provision cases, the claimant’s costs are paid out of the estate. If you are unsuccessful, you may be ordered to pay the estate cost and the court fees.
Challenges you might encounter along the way
There are a few nuances to filing a family provision claim. Generally, there are time limits regarding how long you have to file the claim, based on the state you live in. After the probate has been delivered, the assets have been distributed and the time limit has passed, it becomes increasingly difficult to contest the will. However, it is not impossible with the help of a law professional.
Finally, if no will was written, the death is classified as intestate. In these cases, the assets and estate are left for officials of the state to distribute as they see necessary. Typically, the spouse will inherit all of the assets, or the next available relative if the deceased was unmarried. If no one comes forth to claim the assets, the state will take hold of them. If you’re seeking legal advice about contesting a will and want to know if you have the grounds to do so, reach out to Gerard Malouf & Partners for a no-obligation consultation. We will go over your eligibility and your rights to assets. We specialise in maximising the compensation results for your family legal claim and can help you get the most out of your case. To get started, reach out to Gerard Malouf & Partners today!