Contesting Wills & Unfair Inheritances - Part 2

The Process, Steps, Costs & Timelines

With over 30 years of experience in providing the right solutions. Part 2 deals with the practical aspects of the claim, the steps and realistic timelines.

Who Can Challenge A Will Or Inheritance

The broadest category below is “close personal relationship”. This requires that, the two adult persons whether or not related by family, lived together one or each of whom provides the other domestic support and personal care.

Once a relationship is established there must be “factors warranting” as well.

Our Wills & Estates Senior Lawyers

Jaswinder (Jas) Sekhon

Jaswinder (Jas) Sekhon

Managing Director

Jaswinder has a fresh revitalizing approach to law which has led to outstanding results. Admitted to practice as a solicitor/barrister in four countries, with over 30 years’ experience in wealth, finance, tax, trusts, funds, and structures. Jas equally enjoys strategic work for clients in disputes, emerging, criminal or family law.

Jennifer Cheal

Jennifer Cheal

Senior Associate/Practice Manager

As the practice director, Jennifer is a consummate professional and simply an outstanding lawyer. She has a great eye for relevant detail and yet also a wonderful sense of perspective in devising and implementing legal strategies.

What Every Will Maker Must Know!

A person can transfer his estate (assets) to whosoever he or she wishes to, through his Will?

This freedom of disposition of an estate is only partly true.

From 1 March 2009, the New South Wales Succession Amendment (Family Provision) Act 2008 commenced its operation and the purpose of this new Act includes repealing the Family Provision Act 1982 and amending the Succession Act 2006 to ensure that adequate provision is provided to the family members of a deceased person and certain other persons from the deceased person’s estate.

People can make Family Provision claims against a Will in situations where the Will is valid but the provisions stated in the Will are unfair. In such situations, the Court can make changes in the Will or can distribute the estate in favour of those people.

Some common examples are:

  • Adult children are left out of a will

  • When joint family (with children) are left out of a will.

  • Blended families

  • Step families

  • Intestate claims – no will or the will is incomplete.

What Factors Will The Court Consider?

The Court will have regard to a range of matters to determine whether the provision in the world was adequate including:

Before making an order, the court will consider the following:

  • The relationship between the applicant and the deceased person

  • Any obligations or responsibilities owed by the deceased person to the applicant.

  • The value and location of the deceased person’s estate

  • The financial circumstances of the applicant, including their current and future financial needs

  • Whether the applicant is financially supported by another person

  • Whether the applicant has any physical, intellectual or mental disabilities

  • The applicant’s age

  • Any contribution made by the applicant to increase the value of the estate

  • Whether the deceased person has already provided for the applicant during their lifetime or from the estate

  • Whether the deceased person provided maintenance, support or assistance to the applicant

  • Whether any other person is responsible to support the applicant

  • The applicant’s character

  • Any applicable customary law if the deceased was aboriginal or torres strait islander

  • Any other claims on the estate

  • Any other matter the court may consider as relevant.

Strict Time Limits To Contest

In Victoria and Australian Capital Territory, a will dispute claim must be brought to court within 6 months.

In Queensland, you have 9 months to bring a claim in court, but the other party must be put on notice within 6 months.

Why Court Action IS The Last Resort?

Going to court is the most expensive means of dispute resolution. We provide our expert legal services on a no-win, no-fee basis (subject to our terms and conditions).If your claim is unsuccessful, we don’t charge a professional fee.

If the matter goes to court and you are successful, the court might order the other side to pay your legal fees.

For free over-the-phone advice or to take advantage of our free face-to-face consultation call our expert probate lawyers team today on our Free Call Number

Practical Dispute Resolution Process

  • If this is successful, we help you reach out to the other parties involved to try to reach an amicable settlement.

  • Following a successful mediation, we will get you a deed of settlement, which is a legally enforceable document, setting out the revised terms.

  • This process can usually be concluded in two to four months.

  • In cases where a new settlement can’t be agreed upon, the next step would be a court summons.

  • Often this prompts formal mediation and doesn’t actually require the matter to be heard in court.

  • A mediated settlement takes between four and six months based on our experience.

  • Matters that do end up in court take a lot longer to resolve – contesting a will can usually take up to 12 months in these circumstances, depending on the complexity of the case.

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