Contesting a Will and Inheritance Disputes

If you feel you have been treated unfairly in a will, you might be able to challenge it in court. Contesting a will can be a difficult process, and specific criteria must be met to succeed in a contested will claim. To successfully contest a will, we strongly recommend employing experienced probate lawyers, who will be able to explain how the law works across each state, and help you proceed with a will dispute claim if you are unhappy with the will of a family member or a close personal friend.

At Gerard Malouf & Partners, we have a strong track record of successfully challenging wills on behalf of our clients. We remove the financial barrier that often prevents people from taking legal action by offering our services on a no-win, no-fee basis*.

How do I dispute a will?

When it comes to will disputes, the law changes across states in Australia. However all states will have a legal framework for creating and executing wills. This law will also set out what happens if someone dies without creating a will and how the deceased’s assets should be distributed.

When a will is valid, it can still be challenged on the following grounds:

You believe you are entitled to more from the estate than you received.
You believe the deceased did not have the capacity to make a will at the time they signed it.
You believe the deceased made the will under the influence of others.

Wills are challenged in a wide variety of circumstances. Gerard Malouf & Partners are recognised as experts in cases of inheritance dispute, situations in which we have supported successful will contest claims include:

When adult children are left out of a will, this is the most common contestation, and sees adult children fighting the estate (usually represented by a sibling or parent) for provision.
When joint family (with children) are left out of a will. This involves blended families in which either the original set of children (or spouse) of the deceased fight for a piece of the estate, or vice versa for the step family.
Intestate claims, this is when there is no will or the will is incomplete.

Who is eligible to contest a will?

Only certain people are eligible when contesting a will, these include:

The husband or wife of the deceased person at the time of their death.
A person in a de facto relationship with the deceased person at the time of their death.
The child of the deceased person (including adopted children).
The former husband or wife of the deceased person.
The grandchild of the deceased person and were a member of their household at any time and wholly or partly dependent upon the deceased at any time.
A person living in a close personal relationship with the deceased person at the time of their death. A close personal relationship means a relationship between two adults living together (whether related or not) where there is the provision of domestic support and personal care.

When contesting a will, it is essential that you demonstrate a personal connection to the deceased. It must be shown that they owed you a “moral dependence” that has been wholly or partially unfulfilled.

You will also need to demonstrate that you have a need for provision from the deceased’s estate.

If that sounds complicated, don’t worry. We are here to help. Gerard & Malouf Partners are highly experienced, no win no fee probate lawyers. We can help you assess whether or not you have a claim during a free consultation – contact our expert will dispute team today on 1800 004 878.

How long do I have?

Time limits for contesting a will in Australia vary from state to state:

In New South Wales a claim can be brought to court within 12 months.
In Victoria and Australian Capital Territory, a will dispute claim must be brought to court within 6 months.
In Queensland, you have 9 months to bring a claim in court, but the other party must be put on notice within 6 months.

It’s important to get legal advice about your disputed will claim as soon as possible, to give yourself the best chance of bringing a successful case.

What is an intestate will?

An intestate will is one that is only partially complete. If you are a family member and you want to challenge an intestate will, you have a good chance of success. Or, at least, what you may be entitled to will be clearer, as it is covered in the Succession Act 2006.

However, this doesn’t mean challenging intestate wills is easy. You should speak to a probate attorney to get some tailored legal advice on your specific situation and your options.

Why do I need a probate attorney and how long does it take to contest a will?

A probate attorney will offer expert knowledge and experience of wills and disputes. If you wish to challenge a will, your first step should be speaking to a specialist law firm.

At Gerard Malouf & Partners, we are happy to offer free consultations to help you to decide if you have grounds to make a claim. If you do, then the first step will be for us to help you reach out to the other parties involved to try to reach an amicable settlement.

If this is successful, we will get you a deed of settlement, which is a legally enforceable document, setting out the revised terms. This process can usually be concluded in two to four months.

In cases where a new settlement can’t be agreed upon, the next step would be a court summons. Often this prompts formal mediation and doesn’t actually require the matter to be heard in court. A mediated settlement takes between four and six months based on our experience.

Matters that do end up in court take a lot longer to resolve – contesting a will can usually take up to 12 months in these circumstances, depending on the complexity of the case.

Who pays the legal costs in a will dispute?

The cost of challenging a will varies from case to case. The final bill depends on the complexity of the will and the nature of the dispute, as well as how the matter is ultimately resolved. Going to court is of course the most expensive means of dispute resolution.

At Gerard Malouf & Partners, we provide our expert legal services on a no-win, no-fee basis (subject to our terms). That means if your claim is unsuccessful, we don’t charge a fee. However, there may be other expenses incurred, such as the hiring of external investigators.

If the matter goes to court and you are successful, the court might order the other side to pay your legal fees. The different options and potential outcomes when contesting a will can be discussed with one of our probate lawyers in a free consultation, either in person or over the phone.

We pride ourselves not only on our track record of success, but also our firm commitment to integrity. We are always completely, 100 per cent honest with our clients and will turn people away if we believe they have no grounds to dispute a will.

For free over-the-phone advice or to take advantage of our free face-to-face consultation call our expert probate lawyers team today on our Free Call Number 1800 004 878.

* subject to our terms