Written by: Yolandi Breedt
In March 2015, the University of Queensland (UQ), Queensland University of Technology (QUT) and Victoria University (VU) released a report on Will Making and Contestation in Australia.
The 30-page document revealed that “there seems to be a reasonably high rate of success, whether it is through the court or through mediation… In the PT file review, 77% of claims were successful.”
This positive statistic may have you wondering if you really need a lawyer to contest a Will successfully.
But before you go at it alone, look through a few scenarios when it is beneficial to speak with a lawyer and when you may not need one at the outset.
When to Talk to a Lawyer About Contesting the Will
1. When You’re Eligible
Only individuals with a closely defined relationship to the deceased can contest a Will. A lawyer can help assess whether you are eligible and have grounds to contest someone’s Will.
You may contest a Will under the Family Provision Applications (FPA) in the Succession Act 1981 if you are a..
- Spouse, or
- De facto partner, or
- Child, or
- Stepchild, or
- Financial dependent
…of the deceased.
Once you have established that you are an eligible person you will need to demonstrate that the deceased’s Will has not made adequate provision for your proper maintenance and support. This is crucial to your claim and depending on your personal financial need, will dictate the strength of your FPA.
2. When There’s Still Time to Contest
In Queensland, there are specific time limits to contest a will. It is important to contact an estate litigation lawyer as soon as possible to avoid missing a limitation date.
- A potential applicant has 6 months from the testator’s date of death to notify the estate of their intention to make a FPA.
Following this,
- The FPA must be filed in the District or Supreme Court within 9 months of the testator’s death.
These dates are critical and whilst the court can extend the time limits in certain circumstances, a potential applicant can lose their entitlement to claim forever if either of these dates are missed.
Seeking an extension of the limitation date is an expensive court process that should avoided where possible. However, if this becomes necessary this is something an experienced succession lawyer can assist you with.
3. When the Estate Matter is Complex
If the estate is large or there are complicated financial assets, such as interstate or overseas property, businesses, trusts, or large financial holdings, a lawyer’s assistance can be invaluable. They can ensure your interests are protected and help you navigate the intricacies of succession law.
4. When You Need to Negotiate
It is common for FPAs to settle during informal negotiation or mediation before reaching a trial. This ultimately saves all parties time and money. A lawyer can advise you on the legal implications of any agreements or offers made during this process and ensure your interests are protected.
An experienced estate litigation lawyer can help you assess whether a proposed settlement is reasonable and in your best interest.
5. When Negotiation Fails
If a FPA progresses to court it’s essential to obtain legal representation.
If your matter does not settle during the mediation process, a lawyer will be able to give you objective advice about your prospects of success during a trial. They will ensure that any court ordered deadlines are met and that your claim is presented in the best light possible.
A lawyer will prepare and file the necessary documents such as your application, affidavit and supporting material. Each party will need to follow strict timelines as ordered by the court in order to present their claim.
This is a complex area of law and each FPA needs to be assessed individually to determine the strength of the claim.
When to Wait Before Talking to a Lawyer about Contesting a Will
There are few cases where it’s better to wait to talk to a solicitor about contesting. However, you may want to consider how this action will affect your relationships.
Close Relationship with Other Parties Involved
Contesting a Will is a big decision and it can have a significant impact on you and your family. It is important to consider your family relationships and how legal proceedings will effect this.
Taking the time the openly communicate with the executor and beneficiaries about the Will and its distribution allows an opportunity for all parties to express their concerns and perspectives. You may find that the other parties are open to compromises or alternative solutions.
If there is already a breakdown in communication or one of the parties has already engaged a lawyer, this approach may not be as beneficial.
How a Lawyer Can Help with the Dispute Process
1. Evidence Gathering
Evidence will be used to assess the strength of your FPA and it assists the parties to negotiate a settlement. If negotiation is unsuccessful and the claim progresses to trial, a judge will use the evidence to assess the merits of the claim and any competing claims.
As the strength of your evidence will directly impact the outcome of your claim, it is crucial to support your FPA with comprehensive and relevant evidence. This includes financial evidence.
Required Financial Evidence
- Income;
- Expenses;
- Personal assets; and
- Debts.
This information will go to providing you have financial need from the testator’s estate.
Evidence regarding your health circumstances and relationship are also required and will help strengthen your claim. The more comprehensive and relevant is, the greater likelihood of success. A lawyer can help prepare and present your evidence in the most efficient way.
2. Mediation
A majority of FPAs settle at or before mediation. It is part of the court mandated process, and it is a highly effective way to resolve disputes. A lawyer plays a crucial role in negotiations with the other side and the mediator.
In mediation, the goal is to find a resolution that all parties can accept, and a lawyer helps ensure that any compromises made do not undermine your position or leave you with an unfavourable settlement.
3. Avoiding Mistakes
One of the most common mistakes people make when contesting a will is missing important limitation dates or filing incorrect paperwork. These mistakes can harm your case and potentially cause you to lose your entitlement to claim.
A lawyer ensures that all documents are filed accurately and on time, complying with legal procedures. They can also identify potential pitfalls and guide you in preparing a strong case, minimizing the risk of costly errors that could weaken your claim.
4. Increase Your Chances of a Successful Outcome
Lawyers bring legal expertise, experience, and knowledge of the relevant legislation. They can assess the merits of your case, assess your eligibility to claim and build a strong argument based on the relevant evidence.
Lawyers are also skilled in handling complex estates, dealing with intricate financial assets, and managing disputes between multiple beneficiaries, ensuring that your claim is presented effectively. Ultimately, legal representation provides the knowledge and advocacy needed to navigate the often-complicated process of contesting a will.
If you’re ready to make a Family Provision Claim, seek assistance from a professional Estate Litigation Lawyer.
You may even be entitled to “No-win, no-fee” services if you meet the applicable criteria.
If you believe you have reason to challenge a Will, give us an obligation free call at (07) 5444 1022 today.
Disclaimer:
The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal your situation.
