How to Contest a Will
Summary by Eric Butler... Free Call: 1800 960 156 Ask by email: [email protected]
- 40 years a lawyer and Experienced in over 5,000 Will Disputes.
- Listed in Doyle's Guide to Best Lawyers in Australia.
- Internationally Recognised STEP member as Expert in Will Disputes.
- Grounds: Who Can: How To: Legal Costs: Steps To Mediation: What Our Client Say:
Do a little reading about contesting a will (making a family provision claim). Google words that interest you and learn a little about the law before talking to a solicitor. Some solicitors are in a hurry and talk 'legalese' so you may want to learn the basics before you call.
While you are reading the material from various web sites select 2 or 3 solicitors you think you would like to talk to. 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;
(a) the articles you read suit your problem;
(b) the material you read is easy to understand;
(c) the material your looking for was easy to find;
(d) the solicitors qualifications are to your liking;
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;
(a) which solicitor (not just the office) was easiest to reach;
(b) which solicitor answered your questions to give you a clear understanding;
(c) how many cases the solicitor has handled before yours;
(d) how many years experience the solicitor has had in this law;
(e) which solicitor appeared to know the legal process the best;
(f) which solicitor appears to have the best legal costs proposition;
(e) was the solicitor prepared to give you a fixed fee not just an estimate.
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 items I suggest in Step 3. Especially check if he or she was easy to reach? Did he or she give you a direct line to contact them? Was anything different this time that would change you selection? When you have called the solicitor two or three times you will get a far better idea as to whether the solicitor has all the time you need for your case.
Selecting the right solicitor is critical to getting a great result rather than an ordinary result. 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.
When you are absolutely sure you understand the costs agreement and are prepared to abide by the conditions in the agreement 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 up to 90 days.
After a few weeks or more, if things change and you believe you have made the wrong solicitor selection it is not too late to change. Better now than later. This is one good reason why you might consider an extended cooling off period because that after a few weeks you may decide you want to change solicitors. You are entitled to change solicitors at any time however it is much harder and more costly outside of the cooling off period.
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 on your way to Mediation. For more information about Mediation go to the page titled:
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 is 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. Hopefully you are at this stage. If not, now is the time to change.
You are now in the process of providing your solicitor with all of your relevant evidence. All your personal details. About your health and other family members and about your finances and sometimes other family members. Whatever you do, do not provide any false or misleading evidence, in any way. You might fool your solicitor at the time however if you are caught somewhere along the line your claim will most likely fail or at least be diminished. Please remember that after you swear your affidavit of evidence, that may not be the end of it. The opposition may subpoena documents to attempt to prove a false statement and if your case goes to a hearing you will be cross examined by the opposing barrister and you may also be asked questions by the judge.
When your affidavit of evidence is completed double check that you have not forgotten to tell your solicitor about some important point. Some solicitors may not have good check lists so sometimes it's up to up to you to do some thinking. You only get one chance to present your main affidavit. A follow-up affidavit of evidence may not look as convincing. Whatever happens you don't want be at mediation or a hearing and and realise you have omitted something important. There os nothing worse that client saying "Sorry, didn't I tell you that" or "I have a copy of that at home".
Settling (finalising) your claim. If you get to a hearing before a judge you have lost your opportunity to settle. The case is now out of your hands. Now it is like going to the casino, a real gamble. Even the judges agree that they will each give you a different result. So, if you don't want any surprises seriously think about compromising and taking a little less. The only real winners in court hearings are the lawyers. I'm sure you have heard that before.
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