What is the Family Provision Claim and how does it affect my contest?

PUBLISHED 25 Feb 2020

You are only eligible to dispute a will in court if:

  • You can demonstrate you have a financial need and that the deceased failed to meet a moral obligation to make adequate provisions for you
  • Your financial need is greater than your competitors, or that the estate is large enough to provide funds to you without greatly affecting the share of the other beneficiaries named in the will

What else will the Courts take into consideration?

  • Your overall financial need (the most important factor to be established)
  • Your character, conduct and relationship with the deceased
  • Any obligations or responsibilities the deceased owed to you
  • Any contribution you made to the estate or the welfare of the deceased
  • The size of the estate and any estate liabilities
  • Your financial position compared to other competitors
  • The financial circumstances of any other person cohabiting with you
  • Any physical, intellectual or mental disability you may have
  • Any provision made by the deceased to you during your lifetime

How long do I have to contest a will?

  • New South Wales: 12 months
  • Victoria and ACT: 6 months
  • Queensland: 9 months but the other party must be put on notice within 6 months

What is an intestate will?

An intestate will is one that is incomplete (or nonexistent). In NSW, the Succession Act 2006 governs the legal framework for creating and executing wills and includes a formula for how the deceased’s assets should be distributed in this case.

Why do I need a probate lawyer?

Probate lawyers can provide expert knowledge of wills and have experience challenging wills in court. Your first step should be to speak with a specialist probate law firm.

What happens once I hire a probate lawyer?

The lawyers will contact the other parties involved to try to reach an amicable settlement. If successful, a Deed of Settlement will be written setting out the revised terms. If a new settlement cannot be reached, the next step would be a court summons. However, this will often prompt a formal mediation that is a faster process and doesn’t require the Courts.

If an agreement still cannot be reached, the matter will go to court and can take up to 12 months, depending on the complexity of the case.

Who pays the legal costs in a will dispute?

The cost of challenging a will and who pays for it varies from case to case. However, financial barriers can be significantly overcome by the specialists at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.