Contesting a will
Summary by Eric Butler. Law Society Accredited Specialist in Wills & Estates Law. I've worked the last 24 years doing nothing but family provision claims.
Free Call: 1800 960 156
Family Provision Claim: Summary of Steps to a Hearing.
Your lawyer will tell you all about the law of contested estates and whether or not you have a good case. He or she will determine for you whether you are 'eligible' to claim and then whether or not you have 'need' for provision out of the estate. If the answer is “yes” you will discuss what the best approach would be to try and settle the claim you are considering. Sometimes it is preferable for you to try and negotiate with family members without a solicitor. Other times you may ask the solicitor to try and settle the claim for you. Many cases are settled without the need to commence proceedings.
Trying to settle.
If the family members involved are prepared to settle out of court, documents are prepared by the solicitors for the estate and sent to you for you and your solicitor to approve. If all persons involved are over 18 years of age and have full mental capacity the deed of settlement or letter of 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, NSW law states that the settlement will have to go to court for a judge 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 who has a role in the claim has been provided with adequate provision from the estate.
If settlement negotiations are not successful you will be required to commence proceedings (assuming your solicitor considers you have a proper claim. The application is prepared by your solicitor and includes an affidavit by you of your evidence sworn or affirmed by you. The affidavit will contain information about your finances 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 other family members. Your opposing family members will swear or affirm an affidavit in response 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 the 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 resolved. After final orders, the matter can only be revisited in exceptional circumstances.
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 of course 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 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 and case to go to a hearing (in my opinion). For countless reasons going to a hearing is like going into a casino.
Each hearing or trial as some people refer 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 the witnesses are going to present during their cross examination of their earlier written and sworn evidence. The size of the estate may longer be as first thought and the circumstances of 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, I can guarantee that 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 have 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. Select a solicitor who is experienced in this field of law in the State where the deceased lived.
Getting a copy of the will.
Sometimes it is difficult to obtain a copy of a will without the help of a NSW will contest 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 public for a fee.
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 was 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. In NSW 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 get legal advice about your rights as soon as possible to ensure your lawyer has 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 according to the rules in unfair in your opinion it is open to you to contest the law and make a family provision claim.
Every case is different.
Every case really different and that is why this law can be so complicated. There are traps and pitfalls everywhere for the inexperienced. Contesting a will in New South Wales 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 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.