When a loved one passes away, you may find you weren’t adequately provided for by the person who wrote the will, also known as the testator. If so, you should consider contesting the will.
In this article, we’ll cover who is eligible to contest a will, timelines of making a claim, and state-specific information about the cost of contesting a will in New South Wales, Victoria and Queensland.
Let us help you proceed with a will dispute that isn’t burdened by unnecessary costs.
Court-determined eligibility
Anyone can try to dispute a will, but not all provision claims are determined valid by the courts in Queensland, Victoria and New South Wales. Legal services ensure your claim is handled properly.
An eligible person could be a family member of the deceased including:
- A spouse.
- A de facto partner (current and former).
- Children (natural, unborn, lawfully adopted and step children).
If you financially relied on the deceased at the date that they passed, you would be considered a dependent and would also be able to contest the will. Additionally, a registered caring partner may also be an eligible person to contest a will.
Eligibility of the claimant is validated by the court. The validity of a family provision claim or succession application is handled a bit differently from state to state. Your estate lawyer must meet the requirements under the Succession Act and court family provision procedures in your state. If the will contesting procedure is not followed, a claim may be rejected, no matter who the applicant is.
Time limit for making a claim in Victoria, Queensland and NSW
There is a time limit for an eligible person to dispute a will, and the timeframe differs by state.
In Victoria, you have six months after probation is granted, or three months after giving notice to the executor of the estate, to file a claim. Extensions may be granted by the Supreme Court if the applicant can provide a valid reason for the delay. However, a will that has been fully distributed in Victoria is nearly impossible to recall and redistribute. Therefore, timing is crucial in these circumstances.
In Queensland, you must notify the executor that you would like to contest the will within six months of the testator’s death, and a claim must be filed within nine months from that the testator has passed away. In some cases you can notify the executor after the six month period, and if the estate hasn’t been fully divided amongst the beneficiaries, the executor is required to pause distribution.
In NSW, you have 12 months from the date of death to file according to the Succession Act 2006.
In addition to knowing who can and when to make a family provision claim, there’s the matter of how much can be requested from the estate.
How much can you request from the estate?
An adult who feels they haven’t been adequately provided for will receive the amount the court decides is appropriate based on several key principles including:
- The net value of the estate.
- An applicants’ financial situation, age and health.
- Provisions, gifts or transfers made to the applicant from the testator (or another source) before their death.
- The applicant’s contribution to the wealth of the estate.
- The nature of the relationship between the applicant and the deceased.
- The applicant’s character and conduct during the court proceedings.
An experienced legal team is essential to successfully contesting a will. Legal advice is critical after probate has been granted or if you’re unsure of your claim’s merit in the eyes of the law. Those claims require special approval from the court.
How do you calculate the cost of contesting a will?
Contesting a will can take an emotional toll on the person who feels they’ve not been adequately provided for by a deceased’s estate.
The last thing you’ll want to do is incur financial burden in the process of family provision dispute. In challenging circumstances, it can be a relief to have an idea of the legal fees and other costs of contesting a will.
Civil court proceedings, like a will dispute, carry costs associated with the family provision dispute process including:
- Mediation fees.
- Court fees for filing notices and affidavits.
- Investigating claimant’s eligibility, health and financial circumstances.
- Estimating assets and the estate’s value.
- Gathering evidence (including engaging expert opinion) and reviewing discovery.
- Representation during mediation and in court.
Each claim is unique. However, you should know how to avoid costs associated with a will dispute, especially one that’s unsuccessful.
Cost of contesting a will in NSW
Legal services fee agreement can be made on an hourly or on a no-win, no-fee basis. Family provision claims carry a maximum that lawyers can charge for their service and disbursements (i.e., court filings, medical records and photocopying). Under the Practice Notes of the Family Provision Act of 1982, the costs paid by small estates worth less than $500,000 is capped.
LawAccess NSW provides more detailed information on how legal fees are calculated.
Legal fees of a family provision claim in Queensland
The longer the court proceedings go on, the higher the cost of a family provision claim. A provision claim that goes to court can cost over six figures. According to the Legal Profession Act 2007, legal fees are assessed by either the Supreme, District or Magistrates court in Queensland. Contrary to popular belief, there’s no rule that the estate pays the legal costs of contesting a will for both parties, regardless of the outcome.
Family provision legal fees in Victoria
Considering that a lawyer’s hourly rate can range from $300 to $500, it’s worth noting that the Supreme Court orders costs to be paid in a fixed amount or percentage according to the Civil Procedures Act 2010. In other words, the winning party’s costs aren’t automatically covered by the losing party in family provision cases. A no-win, no-fee arrangement means if you aren’t successful you are not obligated to pay for legal services.
Who pays for legal costs?
The Uniform Civil Procedure Rules of 1999 of Queensland states that the unsuccessful party must cover the court fees. However, the court has it within its power to regulate legal costs of the estate, which could result in the estate not paying for legal costs of a successful challenge.
Cases settled out of court are less costly because they tend to resolve more quickly and require less assistance from an accredited expert in family law. However, there are other costs to contesting a will you may have to pay.
Other costs of contesting a will
The emotional toll on a claimant should be factored into the overall costs of an inheritance dispute. On a more practical level, if the estate has significant debts to pay, contesting a will may not be worth the legal costs.
Find a will dispute lawyer in your state
When going through the process of contesting a will, you want to have a legal team that you can trust by your side. Look for estate lawyers who provide a free consultation to determine the validity of your claim. In addition, ensure your compensation lawyer adheres to professional standards legislation.
The hourly fee for legal representation can range from $200 to $500 or more an hour, depending on the law firm you choose. At Gerard Malouf & Partners (GMP Law), we offer a no-win, no-fee arrangement that can ensure you are focusing on the case instead of the costs. Contesting a will is emotionally draining as it is, and we don’t want to make it worse by exposing our clients to overly expensive and depleting will dispute costs.
Reach out to our will dispute legal team to discuss your claim and to learn more about the costs associated with contesting a will.
