Disputing a Will FAQs
Q. What is disputing a will?
Answer: Disputing a will can come in all sorts and sizes but generally includes; disputing the meaning of a will; rectifying errors in a will; disputing the proper administration of an estate in accordance with the will; removal of executors named in the will or seeking orders to correct financial accounting in the administration of a will.
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 in the terms of the will. However there may be a dispute after probate has been granted that will not change probate. For example the executor may make an application to the court asking for a ruling on the meaning of a section of the will. Any court order would simply change the terms of the will but not effect the grant of probate.
Q. What if there is no will?
Answer: If there is no will the court will grant administration to a family member however that does not stop someone making an application to the court for orders disputing something about the administration of the estate.
Q. Is there a time limit to dispute a will?
Answer: No there is not however the dispute should be notified to the executor/s as soon as possible and before there has been any distribution of the estate.
Q. When can you dispute a will?
Answer: Generally you should act without delay unless the dispute or allegation relates to the poor administration of the estate. If your complaint relates to the poor administration of the estate you normally need to give the executor/s about 12 months to properly administer the estate before taking any court action and then only commence proceedings after giving the executor/s sufficient opportunity to correct his/her errors.
Q. Who can dispute a will?
Answer: The only person/s entitled to dispute a will are those that have an interest in the will/estate and that any order of the court sought and granted would be of direct benefit to them. They may be a family member, creditor of the estate or any other.
Q. How much will disputing a will cost?
Answer: The cost depends entirely on how complicated the dispute is and how long it takes to finalisation. Any correction of a will requires the court to approve and evidence needs to be produced to the judge. A simple case could cost $20,000. A complicated case anywhere between $200,000 and $500,000.
Q. Who pays the costs in will dispute case?
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 disputing 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 disputing a will?
Answer: No. 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 dispute case take?
Answer: Depending upon the complexity of the case, but possible 12 months for a simple case and probably 2 years or more for a court hearing.
Q. What factors does the court take into consideration when you dispute a will?
Answer: In the many different forms of disputing a will and each have different facts to take into consideration. The court looks at all the available evidence in each case however the evidence can at times be very restrictive especially in cases involving the meaning of a will. The will must speak for itself. For example evidence of what the deceased will maker may have ‘intended’ in his/her will is not admissible.
Q. What money or property is regarded as being part of an estate in a will dispute case?
Answer: The only assets of the estate are those owned by the deceased at the time of his/her death. There is no ‘Notional Estate” in will disputes. 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.
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