Contesting a will and Inheritance Disputes

This is our expert legal guide on wills and disputes. If you feel you have been treated unfairly in a will, you might be able to challenge it in court.

In this guide, our experienced probate lawyers explain how the law works and what you need to do 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 (subject to our terms).

How do I dispute a will?

When it comes to wills and disputes, the relevant legislation in New South Wales is the Succession Act 2006. This law creates the legal framework for creating and executing wills. It also sets out what happens if someone dies without creating a will. This includes a formula for how the deceased’s assets should be distributed.

A will can 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. Here are some examples:

Adult children 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
Joint family (with children left out): 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

How do I know if I’m eligible to make a claim?

Only certain people are eligible to dispute wills. Here are some examples:

You were the husband or wife of the deceased person at the time of their death
You were in a de facto relationship with the deceased person at the time of their death
You are a child of the deceased person (including adopted children)
You are a former husband or wife of the deceased person
You are a 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
You were 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.

If you want to dispute a will, you will have to be able to demonstrate that you were personally connected to the deceased and 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 probate lawyers. We can help you assess whether or not you have a claim during a free consultation.

How long do I have?

Time limits for challenging a will in Australia vary from state to state.

Here are some general guidelines on time limits:

New South Wales: 12 months.
Victoria and ACT: 6 months.
Queensland: 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?

This has nothing to do with the state jurisdictions or different states having different rules for wills and disputes.

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?

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 – usually 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 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 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 public liability lawyers team today on our Free Call Number 1800 004 878.