Will Dispute Lawyers
If you have been unfairly left out of a will, you may be entitled to contest.
Overview
Will dispute lawyers in Australia
Arguably, there’s no legal matter more sensitive than those surrounding the last will and testament of a deceased family member. Unfortunately, estate litigation can be unavoidable in certain circumstances.
If you believe you are entitled to more from an estate, suspect a fraudulent will, or mishandling by Executors, speak to our experienced dispute lawyers specialise in contesting wills.
Contact us for no-obligation legal advice about your claim.
Will dispute lawyers can help an eligible person wishing to contest or challenge the deceased’s estate to understand:
- Who can make a family provision claim.
- The timeline for making a family provision claim.
- The grounds for challenging or contesting a will.
- The estate litigation procedures.
- The potential outcomes of a will dispute.
A will dispute that is unable to be resolved in mediation must be litigated in court and the court proceedings are set forth by the state or territory’s succession and executed by the family provision division under the Supreme Court.
Experience
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Who can dispute a will?
The matter of who can challenge or contest a will varies according to state legislation but typically, the following parties are most likely to be deemed an eligible person:
- Current spouses, de facto spouses (domestic partners) and same-sex partners of the deceased.
- An ex-spouse or partner of the deceased (in some areas).
- A “natural” or adopted child of the deceased (including ex-nuptial children).
- Stepchildren (in some cases).
- A grandchild who was dependent on the deceased.
- A person who was at any point both a member of the deceased’s household and wholly or partly dependent on them.
- A person who was living with the deceased person at the time of their death and had a close personal relationship with them.
- A person who contributed to the value of the deceased’s estate.
- A person who was given promises about an inheritance from the deceased before their death.
A will dispute lawyer can help to determine if you have a valid claim.
Grounds for disputing a will
Although the personal circumstances vary from case to case, there are general grounds for disputing a will:
- Challenging the will’s validity based on the testamentary capacity of the testator to make or rewrite a will.
- Contesting that the estate has a moral duty to provide for them but doesn’t make adequate provisions or leaves them out completely.
Other possible grounds for filing a family provision claim include:
- A complication in the distribution of the deceased estate’s assets.
- Mistakes made by the executor that negatively impacted you.
- Undue influence of a beneficiary resulting in disenfranchising you and others.
When to file a family provision claim
The statute of limitations for disputing a will varies by location of the estate.
Western Australia:Â Six months after probate. Late applications are reviewed by the court according to the Family Provision Act 1972.
Victoria:Â Six months from the date of probate granted. A late application must be approved by the court according to the Administration and Probate Act 1958.
Tasmania: Three months to lodge a claim with the court after probate under Testator’s Family Maintenance Act 1912 (TAS).
South Australia:Â After probate is granted claims may be filed within six months according to Inheritance (Family Provision) Act 1972. In certain cases, the court will allow you to join proceedings already underway.
Queensland:Â Six months from the date of death to notify the executor of the claim and up to three months to lodge the claim with the court thereafter. Altogether, you have nine months from the date of death to file a claim according to the Succession Act 1981.
Northern Territory:Â 12 months from probate with the possibility of later special circumstances claim under the Family Provision Act 1970.
New South Wales:Â 12 months from the date of death to file according to the Succession Act 2006.
Australian Capital Territory:Â 12 months from the date of death to lodge a claim with the courts under the Family Provision Act 1969.
Our Process
The estate dispute process
Generally, when someone passes away, the named executor of a deceased’s estate applies for a grant of probate which is the court legally recognising a will’s validity. This process varies depending on the area and not all assets are required to receive a grant of probate.
There are cases when a will is automatically revoked in entirety in the case of a marriage or partially in the case of gifts to ex-spouses. When there is an estate dispute, the eligible person is either challenging (disputing the validity of the entire will) or contesting (disagreeing with some of the terms) the will.
Steps to disputing a will in Australia
The process of contesting a will can vary based on local laws, and GMP Law’s will dispute lawyers can offer the expertise needed to navigate this process effectively. Here are some key steps that may occur during the process of contesting a will:
- A lawyer will work to halt probate proceedings to prevent the distribution of assets by the executor. They might also include assets not mentioned in the will, like a superannuation fund, in the claim.
- We will work to understand when to file a family provision claim to avoid losing your inheritance if assets have already been distributed.
- Documentation, financial records, and evidence of unmet needs will be gathered.
- Negotiations between involved parties and the deceased’s estate aim to reach an agreement on asset distribution.
- If a settlement isn’t reached, court proceedings will begin, potentially lasting up to two years.
- Legal costs are determined by the judge after the final ruling.
- Challenging the testator’s mental capacity or undue influence by a person with power of attorney can render the entire will invalid.
Free Resources
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Reaching dispute resolution
In Australia, you cannot bring a will dispute without evidence in support of your claims such as testamentary capacity, inadequate provision, undue influence or executor misconduct. By engaging a lawyer with specialised knowledge of local Succession Act and Family Provision laws, you have the best chance of a successful outcome for your claim.
The court assesses family provision claims on a case-by-case basis. An eligible person contesting a will is not guaranteed a provision from the deceased’s estate.
Ultimately, your award is determined by the strength of your case and the final value of the estate.
The court looks at several considerations to determine your potential award:
- Evidence invalidating a will.
- The moral duty of the testator is to provide for you in their will.
- Your relationship with the deceased.
- Effect an award may have on other beneficiaries.
- Your physical, mental and intellectual disability level and that of the other beneficiaries.
- Any financial or non-financial support you contributed to the testator.
- Your financial need.
Our will dispute expertise
Explore specific types of Will Dispute claims
Why you need a lawyer to contest a will
Each state and territory has its own legislation related to making a will, probate, testator family maintenance (the amount paid from the estate to a spouse or children of the deceased) and family provision.
Contesting a will is a complex undertaking and you will certainly be in a better position to mount a challenge against the executor or contest a will with objectivity and expertise in the relevant laws and court proceedings for your particular region.
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We take on 100% of all upfront costs for you. If you don’t win, we won’t charge you anything for our work — that is the basis of our law firm.
This approach also signifies that if — in the rare instance — we do not win your case, you will not be required to pay a contingency fee for our work together.
This means that you can focus more on healing, without the additional worry of legal costs by seeking the compensation you rightfully deserve.
Upon winning your case, we do not charge a percentage of the settlement — as may be commonly expected. Rather, we charge based on our time.
We are dedicated to serving Australia with the utmost commitment to our clients’ success and satisfaction, as evidenced by our 98% success rate and $4 billion in settlements delivered.
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Meet the Contesting Wills team
Meet some of the diverse and dynamic compensation lawyers that support our clients with their Will Dispute claims.
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