How to Contest 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.   

Right now you might not think the process I suggest hereunder is worth the effort, but I have seen countless cases where applicants had wished they had been more informed from the beginning. 

Step 1.

Do a little reading about contesting a will (also known as making a family provision claim). Google words that interest you and learn a little about the law before talking to a solicitor.  

Step 2. 

While you are reading the material from various web sites select 2 or 3 solicitors you think you would like to talk to about your case. Each solicitor web site will give you a good idea of the communication skills of the solicitor as well as his or her experience and qualifications. You might consider things like, whether or not;

(a) the articles you read suit you;

(b) you find the material you read easy to understand;

(c) you find it easy to find what you are looking for;

(d) you find information about the solicitor to you liking;

Step 3. 

Now you are ready to start selecting a solicitor to represent you. Phone each of the 3 solicitors and start your selection process. Your aim is to ascertain various things about each solicitor, such as;

which solicitor (not just the office) was easiest to reach;

which solicitor answered your questions best;    

how many cases the solicitor has handled before yours;

how many years experience the solicitor has had in this law;

which solicitor appeared to know the law best;

which solicitor appears to have the best legal costs proposition;

Step 4. 

After talking to the 3 solicitors you will still have more questions because other things will pop into your head. This time phone only your preferred solicitor and check again the 4 items I suggest in Step 3. Was he or she just as easy to reach? was anything different this time that would change you selection?

Step 5.  

Let's assume at this stage you have selected a solicitor to represent you. Now you need to 'read the fine print'. All solicitors have different costs agreements. All 'No Win No Fee' costs agreements are not the same. Some costs agreements are not totally 'No Win No Fee'. Some costs agreements have additional charges. Visit this page for all you need to know about Legal costs. Legal Costs Contesting a Will. 

Step 6. 

When you are absolutely sure you understand the costs agreement and are prepared to abide by the conditions then you are ready to sign and be bound by the terms. You should however check one last thing. The law requires that you have a least five (5) days cooling off period. You may feel that five days is not enough for you because there are many things to consider at this point. You are quit entitled to ask for a longer cooling off period. Some solicitors offer 90 days.

Step 7. 

After a few weeks or more, if things change and you believe you have made the wrong selection of solicitors it is not too late to change. Better now than later. One good reason why you might consider an extended cooling off period is that after a few weeks or more you may decide you want to change solicitors. You are entitled to change solicitors at any time however it is much harder and more cost outside of the cooling off period. 

Step 8. 

Now you are ready to work with your solicitor towards negotiating a settlement of your claim with the solicitor representing the estate. Rarely do cases go all the way to a court hearing before a judge. Most cases are settled (finalised) at Mediation and some settle before mediation. All settled cases must be approved by the court. For the court to approve a settlement, affidavit evidence or position statements must be prepared by all parties involved and filed in court. There is a real art in the preparation of 'winning' affidavits and position statements. You are now your way to Mediation.  For more information about Mediation go to the page titled:

 '33 Steps to Mediation'.  

Summary:

When you commence a family provision claim, you may not know it at the time, but you are about to commence a very close relationship with your selected solicitor because you are going to be providing him or her with your family history and other confidential information. It is for this reason you should select a solicitor that not only is experienced in this law and knows the traps and pitfalls, but most importantly, is always easy to reach and always easy to communicate with.

ALPMA Law Society of NSW STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria

We are always available for a free no obligation discussion
1800 960 156

Sydney

Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 57, MLC Centre,
19-29 Martin Place
,
Sydney NSW 2000
.

Melbourne

Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 40, 140 William Street,
Melbourne VIC 3000
.

Brisbane

Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 27, Santos Place,
32 Turbot Street
,
Brisbane QLD 4000
.

Newcastle

Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 1, 45 Hunter Street,
Newcastle NSW 2300
.