The Process for Contesting a Will

Contesting a Will from Start to Finish.

There are about 13 steps involved in a Family Provision Claim, also known as contesting a will. The length and complexity varies from case to case and family to family and the point at which the matter is finalised. The following is an overview of the various steps involved.

  1. Getting a copy of the Will

The following people are entitled to a copy of the Will.

  1. a) any person mentioned in the will;
  2. b) any person mentioned in an earlier will as a beneficiary;
  3. c) spouse, parent or issue of the deceased;
  4. d) any person who would have been entitled to a share in the estate if the deceased died intestate;
  5. e) parent/guardian of a minor mentioned in the will or who would have been entitled to a share if the deceased died intestate;
  6. f) creditor or person with a claim against the estate;
  7. g) a person who may be eligible to bring a family provision application".

Getting a copy of the Will can often be difficult because sometimes the executor/s or even the executors solicitors refuse to hand over a copy. The people who are entitled to a copy of wills are family members, those named in the Will or an earlier Will and those intending to claim Family Provision as referred to above.

However many lawyers do not understand the different rules involved and simply will not provide us a copy of the will... even to us as accredited specialists in this field of law. Often the only way to convince an arguing lawyer is to either commence proceedings or threaten to commence proceedings seeking to have him or her produce the will into court and to pay the legal fees of the application. That often brings then to their senses.

  1. Obtaining a Grant of Probate.

We need to know what will is being contested. So, the executor/s named in the Will make an application for probate which is the term used for proving the Will. If there is no Challenge to the Validity of the Will and the Registrar of the court sees no problem with the Will then the court will grant probate to the executor/s to administer the estate in the accordance with the terms of the Will and of the law. Once that has occurred all persons involved in the estate know precisely what Will is to be followed. Sometimes a deceased person my have made many Wills. The executor/s will become the defendant/s in a family provision claim.

Contrary to the belief of many inexperienced lawyers in this field of law, the role of the defendants/executors in family provision cases is compromise any claim not just defend it blindly. In other words, if the claimant clearly has a good case the defendant is obliged to attempt to negotiate a sensible settlement in an effort to save the estate unnecessary legal costs that might be involved in an ongoing contest. 

  1. If there is no Will. (Called an Intestacy).

If there is no Will the rules of intestacy will apply as to which family member is entitled to provision out of the estate. If your share of the estate, according to those rules are not fair or proper you may have a claim for provision. When there is no Will or a Will cannot be found, one or more of the family members needs to apply to the Supreme Court of the State involved for 'Administration' of the estate. It is a complex process and you would be advised to instruct a solicitor to act on your behalf.

The Applicant for Administration needs to make an application similar to an application for probate. That is, details of all family members needs to be included as well as details of the assets and liabilities of the estate. 

  1. Trying to resolve the dispute early.

If the family members involved in your case are prepared to settle out of court, documents are prepared in the terms agreed upon for your written approval.  If all persons involved are over 18 years of age and have full mental capacity the 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. Nearly all cases are capable of being settled without the need to go to court. However, often family members simply cannot or will not agree even to 'sit down' and discuss the problem that could easily be resolved.

After lawyers have been engaged by both sides the matter should be even more capable of being settled. However, that depends upon whether or the lawyer are experienced in this law and even if so, whether the clients are prepared to take the advice of their lawyer. I guarantee that if experienced lawyers are involved and each side take the advice of the lawyers, the case will settle.

  1. Court approval.

If there are persons involved who are under 18 years of age or who do not have full mental capacity, any settlement will have to go to court for the court 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). 

  1. Settlement unsuccessful.

If settlement negotiations are not successful you will be required to commence proceedings with a view firstly of going to mediation. The application is prepared by us and includes an affidavit by you of your evidence. The affidavit will contain information about your finances, health 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 will protect the interests of any beneficiaries named in the will. Those family members will swear or affirm an affidavit in response to your claim including full details of the estate and full details of the family members named in the will who are opposing your family provision application. 

  1. Your evidence.

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 your 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.

Before mediation both sides are required to file in court and serve on the opposition all affidavit evidence to be relied upon... at mediation or a court hearing that could follow if mediation is not successful. The evidence you provide in your affidavit (sworn on oath or affirmed) is not tested until a hearing before a judge. However once a judge starts to hear the claim you will be required to go into the witness box and you will be asked questions on your evidence by the opposing barrister and often also by the judge. These questions are referred to as cross examination and are designed to test your evidence to see whether your evidence is to be accepted or found by the judge to be false, misleading or over stated.

  1. 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. 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 forever resolved. After final orders, the matter can only be revisited in exceptional circumstances such as fraud.

  1. 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. 

Throughout the day of mediation the legal team for each side will discuss the legal issues involved. Each team usually consists of your solicitor who has prepared your claim for you and your barrister who will have been briefed about your claim. The presence of a barrister at mediation is twofold.

Firstly, to assist generally in the settlement process and if settled, writing and later presenting of the consent orders  to the judge for approval.

Secondly, to thoroughly understand your claim as well as the defendants defense so as to prepare thoroughly for the hearing which will take place sometime in the future.

  1. 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 the case is such that the court is required to approve the terms agreed upon.

  1. 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).

  1. Between mediation and a hearing.

During the time between mediation and court hearing the judge will call the barristers for each side to court at what is called a directions hearing or pre trial hearing. On these occasions the judge will give directions as to what further affidavits are to be filed and what if any subpoenas are required and resolve any other issues that may occur. During this process all witness provide their evidence by way of affidavit.

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 a case to go to a hearing (in our opinion). For countless reasons going to a hearing is like going into a casino. Frequently, only the lawyers win. 

  1. The hearing.

Each hearing 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 witnesses are going to 'stand-up' under cross examination of their earlier written and sworn evidence. The size of the estate may no longer be as first thought and the circumstances of the participants may have changed. 

  1. 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, where possible, 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 need to be very exceptional circumstances before experienced lawyers would not settle at mediation.

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

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Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 13, 111 Elizabeth Street ,
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