Challenging a Will FAQs
Q. What is challenging a will?
Answer: Challenging a will is challenging the validity of a will on the grounds of either; lack of mental capacity, lack of knowledge and approval, undue influence, fraud or forgery.
Q. What happens after challenging a will?
Answer:If the will being challenged is found to be invalid the next earlier will is looked at. If that will is valid probate is granted. If that will is invalid then look at the next earlier will and so on.
Q. What is probate?
Answer: Probate is the document granted to the executor when the will is valid. Probate granted to an executor/s is proof that the will is valid and proof that the executor/s is entitled to administer the estate and distribute the assets in the terms of the will
Q. What if there is no other will?
Answer:The rules of intestacy apply which means family members listed in order of priority receive the assets of the estate; Spouses and children first in line.
Q. Who receives probate if there is no will?
Answer:Probate is only granted if there is a will. If there is no will a family member applies for administration of the deceased estate and the document they receive is called ‘Letters of Administration”.
Q. Is there a time limit to challenge a will?
Answer: No there is not however preferably the will should be challenged before probate is granted. If you challenge the will after probate is granted the application is for the grant of probate to be revoked.
Q. Who can challenge a will?
Answer: The only person/s entitled to challenge the validity of a will is one who is either named in a previous will or would be entitled to an inheritance under the rules of intestacy. Please note, the rules are different for contesting a will (family provision claims).
Q. How much will challenging a will cost?
Answer:As a rough guide there are two extreme scenarios; Firstly, a very simple challenge with all parties agreeing to an application for the judge to approve the cost could be anywhere between $20,000 and $50,000. Secondly, a complicated challenge with lots of witnesses and a five day hearing in court anywhere between $200,000 and $500,000. Thirdly, somewhere in between.
Q. Who pays the costs in will challenge cases?
Answer: As a general rule the loser pays all costs. However if the judge is of the view that the court case was brought about by the conduct somehow of the deceased then the costs might be paid out of the estate.
Q. Do I need to go to court when challenging a will?
Answer:Only if you have evidence to submit to the court as a witness. This is different to contesting a will (family provision claims) where mostly the parties are required to attend mediation or court.
Q. Do I need to go to a solicitor’s office when challenging a will?
Answer: Absolutely not. I have acted for people throughout Australia and all over the world without ever having had a face-to-face meeting. However, most of the time we do eventually meet. The first steps however are usually achieved by phone, email or skype and our first meeting will take place whenever you wish. Sometimes travelling to a solicitor’s office can take unnecessary time and money.
Q. How long does a will challenge case take?
Answer: Depending upon the complexity of the case, but possible 9 to 12 months for settlements to be approved by the court and probably 12 months to 2 years or more or a court hearing.
Q. What factors does the court take into consideration when you challenge a will?
Answer: The court looks at all the available evidence regarding the mental capacity of the will maker and the conduct of family members or friends or carers as well evidence from lawyers, doctors and forensic specialists.
Q. What money or property is regarded as being part of an estate in a will challenge case?
Answer:There is no ‘Notional Estate” in will challenges. The only assets of the estate are those owned by the deceased at the time of his/her death. However a family member may make an application to the contest the will (make a family provision claim) whilst waiting the outcome of a challenge.
Q. If a will maker leaves a small sum of money to a family member does that gift stop that family member from challenging the will?
Answer: No it does not. The court is only concerned about the validity of the will.
If you have any questions give me a call anytime. I will personally answer the phone. I'm happy to discuss with you the three (3) most common mistakes made by will dispute contestants that can lead to long delays, huge legal cost and an unhappy end. No cost, no obligation. Choose me to represent you or not, at least you will have the knowledge to start on the right track.
Eric Butler: 1800 960 156