Contesting a Will from Start to Finish.
If you've been left out of the Will or not properly provided for in the Will I can tell you during one telephone conversation whether or not you have a good case to claim for provision (or further provision) out of the estate. We can discuss the steps and the best approach in these cases including how to settle your claim quickly without any need to go to court.
Trying to settle.
If the family members involved in your case are prepared to settle out of court, documents are prepared in the terms agreed upon for your written approval. If all persons involved are over 18 years of age and have full mental capacity the agreement does not have to be approved by a court. The legal costs in such a case will be at hourly rates and will depend upon how much time was involved in negotiations.
Court to approve settlement agreement.
However if there are persons involved who are under 18 years of age or who do not have full mental capacity, any settlement will have to go to court for the court to approve. This means documents (sworn or affirmed affidavits) will have to be prepared by the solicitors on each side in the manner stipulated by the rules of court sufficient for the judge to read and understand the various financial needs of all family members concerned. The settlement agreement will only be approved if the judge is of the view the settlement is a proper settlement and in particular the settlement is in the best interests of any person under 18 (or without full mental capacity).
If settlement negotiations are not successful you will be required to commence proceedings with a view firstly of going to mediation. The application is prepared by us and includes an affidavit by you of your evidence. The affidavit will contain information about your finances, health and family history and is filed in court and then served upon the executor of the estate.
The solicitor representing the estate will give advice to the executor and will protect the interests of any beneficiaries named in the will. Those family members will swear or affirm an affidavit in response to your claim including full details of the estate and full details of the family members named in the will who are opposing your family provision application.
With the evidence from both sides of the dispute now received, all persons involved will have a clearer picture of every one's personal situation, health and financial position (which are the most important elements in these cases). Both sides will again attempt to settle the claim. Whilst negotiations are taking place a date will be set for a compulsory mediation of your claim. A mediator will be chosen although each State has different rules in this regard. Sometimes the judges become involved in discussions with the parties and at this stage barristers also frequently become involved.
If the claim is settled at mediation or shortly thereafter (which frequently occurs) the lawyers agree on written terms and when everyone has signed those terms the matter is concluded. Only in exceptional circumstances can there be an appeal, for example if someone fraudulently misled the proceedings. Otherwise the matter comes to an end unless of course the court is required to approve the terms agreed upon. Often, a short hearing at court is required at the request of one or both of the parties for the court to approve the terms of settlement. This can help to give certainty that the matter is forever resolved. After final orders, the matter can only be revisited in exceptional circumstances such as fraud.
What happens at mediation.
Mediation usually starts with a round table conference with everyone present. The representative of each team makes a statement putting his or her client's case. There is sometimes further discussion about the points raised and then each team goes into a separate room for private discussion. Throughout the day or half day of the mediation there are continuing attempts to settle the claim.
Settled at mediation.
If the claim is settled at mediation or shortly thereafter (which frequently occurs) the lawyers agree on written terms and when everyone has signed those terms the matter is concluded. Only in exceptional circumstances can there be an appeal, for example if someone fraudulently misled the proceedings. Otherwise the matter comes to an end unless the case is such that the court is required to approve the terms agreed upon.
Not settled at mediation.
If the matter does not settle at mediation the case will be listed for a hearing before a judge. In general terms (remembering every case is different) it might take 6 months to get to mediation and 12 months to get to a hearing).
Between mediation and a hearing.
Between the mediation and the hearing of the matter before a judge there are endless opportunities to settle the matter. Only as a last resort should anyone allow a case to go to a hearing (in our opinion). For countless reasons going to a hearing is like going into a casino. Frequently, only the lawyers win.
Each hearing is by a single judge who has discretion as to the possible orders he or she can make. You don’t know which judge you are going to get and each judge will have a different view of the case. You don’t know how witnesses are going to 'stand-up' under cross examination of their earlier written and sworn evidence. The size of the estate may no longer be as first thought and the circumstances of the participants may have changed.
Appeal Judges decision.
At the conclusion a disgruntled team can appeal the judge's decision and that will delay the distribution of the estate until the appeal is decided, which may be another 12 months or more. Accordingly, where possible, two experienced teams of lawyers opposing each other will always try their best to settle a claim rather than go to a hearing. There would need to be very exceptional circumstances before experienced lawyers would not settle at mediation.
Each State has slightly different rules.
When contesting a will in Australia each State has it own rules. The rules are very similar but the subtle differences are important. We are experienced in this field of law in NSW, Victoria and Queensland. The supreme court in each state is in the capital city.
Getting a copy of the will.
Sometimes it is difficult to obtain a copy of a will without the help of a lawyer. Only certain people are entitled to a copy of the will before probate is granted. Those people are usually family members and people named in the will. After probate is granted the document is available to the general public for a fee payable to to the court.
Probate of the will is granted to the executor/s named in the will (unless there is a challenge to the actual validity of the will document, for example an alleged fraud, forgery or lack of mental capacity). The executor/s is then responsible for the administration of the estate assets and distribution of them in accordance with the will.
‘Probate’ is the legal term that simply means “proof of the will”. After the death of a person his or her will is not binding upon society until probate of that will has been granted by the Supreme Court of the State where the deceased lived. This means that in many cases, the estate cannot be administered until probate is granted.
If there is no will.
If there is no will or no executor named in the will or no executor prepared to act as executor the court will instead of granting probate grant ‘Administration’ usually to the person who has the largest entitlement to the assets of the estate. A family provision order will not be made until there is a grant of probate or administration of some kind. However in Queensland a family provision order can be made without the need for probate or administration. Even so, you should ask us about your rights as soon as possible to ensure we have time to make sure your case is as strong as possible
If there is no will the rules of intestacy will apply and each state have slightly different rules as to which family member is entitled to provision out of the estate. If your share of the estate, according to those rules is not fair or proper you may have a claim for provision.
Every case is different.
Every case really is different and that is why this law can be so complicated. There are traps and pitfalls everywhere for the inexperienced. Contesting a will firstly involves an agreement between all concerned that the will is valid. Only then can everyone concerned identify whether the will is fair. People frequently make many wills before their death so it is important to be looking at the last valid will and not be sidetracked by either earlier wills or invalid wills.
Give me a free call anytime for a discussion. Eric Butler: 1800 960 156
I will personally answer the phone and be happy to discuss with you any aspects of your case.
Qualifications & Memberships:
- Solicitor of the Supreme Court of New South Wales
- Listed in Doyle’s Guide to the best lawyers in Australia as one of Sydney’s recommended lawyers in Wills and Estates Litigation.
- New South Wales Law Society Accredited Specialist in Wills & Estate Law.
- Member of the International Society of Trust and Estate Practitioners
- Awarded in 2015 (and nominated in 2011 and 2013) for the Law And Justice Foundation Award for Pro Bono work by the Law Society President
- Associate of the Australian Legal Practice Management Association.
- Member of the Law Society New South Wales
- Member of the Law Society Queensland
- Member of the Law Institute Victoria