Will Disputes in VIC
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A will dispute is not the same as challenging the validity of a will or contesting a Will on 'family provision' grounds. A dispute over a Will can arise for many reasons not related to a ‘challenge’ or a ‘contest’ such as an argument as to what the will meant; how the will is being administered or distributed; whether there are errors in the Will; whether a beneficiary named in the Will is not entitled because of a crime committed; removal of an executor or administrator or other disputes about the use of a ‘power of attorney’ during the deceased lifetime.
Disputing a Will: Step by Step
Your solicitor will ask you to provide information about the deceased, the will/s of the deceased and some details of the beneficiaries named in the will/s and other parties. There may be a considerable amount of investigation required which will be costly so you want to be sure you have a good case before you start.
Your solicitor will explain the process involved however is unlikely to be in a position to give you any idea of your chance of success at this early stage. Only when all documentary evidence and witness statements have been obtained will you have an idea of how you are going to go.
Not just anyone can claim.
Not everyone is entitled to dispute a will in NSW. You must be able to show that and any court order sought by you would result in a benefit to you. You may be a family member, beneficiary, a creditor or any other person who could show entitlement following a successful order of the court.
When all the evidence is to hand, your will dispute lawyers will give you some advice about the prospects of success and you will then make a decision as to whether or not you wish to make your application to the court. Remember, the loser will most likely be ordered to pay the legal costs although there are exceptions to that rule.
You may immediately file a ‘Statement of Claim’ in the Supreme Court setting out you allegation or if you require more time to prepare your case you can either ask the executor/s or their solicitor for more time or file a caveat to stop probate being granted of the Will.
Lodging a caveat.
This is a probate caveat not a property caveat. If you lodge a caveat you must be prepared to go to court possibly within days or weeks to answer a summons as to why your caveat should not be removed. You, your NSW will dispute solicitor and barrister will be required to attend court before a judge of the Supreme Court and provide evidence sufficient to show that there is some doubt about the will. If the judge agrees with you he/she will allow the caveat to remain in place until a court hearing to determine your application.
Caveat without merit.
If the caveat you filed is found not to have merit you would be liable to pay the costs of the proceedings.
Also, if after lodging the caveat you decide you want to withdraw it you may be liable for the executors costs incurred to that point.
Sometimes it is clear to all concerned that there is a problem with the will. Possibly know one is able to determine precisely what it means or what some part of it means or what the will maker was trying to convey. In those circumstances the parties can approach the count unified as to what they want. That is, they want a judge to determine what was meant in the will that they have been unable to determine.
Will not clear.
In cases of uncertainty of the terms of the will it is often found that the uncertainty was the fault of the will maker or his/her will dispute lawyer and in that event the costs of the proceedings will often be paid out of the estate or in some cases costs to be paid by the faulty solicitor.
However, you cannot decide on changes to the Will between yourselves or your legal team and attempt to follow that agreement without a court order. If you come to an agreement about the meaning of the will your legal team may present the facts to a judge and attempt to obtain his/her approval as to the change. If the judge agrees he/she will make orders as to the proper meaning.
Prepare for hearing.
If the dispute is not settled each side will prepare their case for hearing before a judge. Evidence can be from individual witnesses such as family members, doctors, solicitors, handwriting experts and others. Hearings of this nature are often over a few days and are nearly always very expensive. They involve a lot of preparation in addition to the days in court. Generally the loser pays.
The exception to the rule is if the judge considers the proceedings were required because of the fault in some way of the will maker.
Slightly different in each Australian state.
The process described above applies to all applications for a court order in NSW and throughout Australia. However sometime a dispute arises after probate has been granted and in that case no caveat is relevant. The applicant simply seeks orders from the court in accordance with their allegations. Executors can be removed; administrators can be appointed to finalise the distribution of the estate; estate financial accounts may be required to be provided to the court for approval; financial accounts of the power of attorney for the deceased may be called for investigation and approval and other any other orders including orders as to who is to pay the legal costs.
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