Contesting a Will in NSW FAQ.

Q. What is contesting a will?

Answer: When everyone agrees the Will is valid but one or more allege they were left without adequate provision for their maintenance education or general advancement in life. Each can make a claim to the court commonly referred to as a family provision claim.

Q. What is a family provision claim?

Answer: The same as contesting a will. It is a claim for financial provision out of the estate (if left out) or a claim for further financial provision (if left inadequate financial provision).

Q. Is there a time limit to contest a will (make a family provision claim)?

Answer: Yes and each State is different. In NSW you have 12 months  from the date of death to lodge a claim in court. In Queensland you have 9 months from the date of death however that is 6 months from the date of death to notify the executor of a claim and another 3 months in which to lodge the claim in court. if notice isn't given within 6 months you might still be able to claim, but should get legal advice as soon aS Possible. In Victoria you have 6 months from the date of death to lodge a claim in court.

Q. Who can contest a will (make a family provision claim)?

Answer: A family member or sometimes a “friend”. The law relating to eligible applicants is quite complex and different for each State. If you wish to give me a quick call I will tell you in an instant whether you are eligible and what your chance of success. Claims contesting a will can be settled out of court without a judge’s approval (although there are exceptions to the rule).

Q. How much will contesting a will cost?

Answer: That depends entirely upon your choice of solicitors. There can be a huge difference in solicitor’s costs in the end result. Depending upon the complexity of the case the costs can vary enormously from a few thousand dollars in a small estate to over one hundred thousand dollars in an estate valued over several million dollars.

Q. Who pays the costs in will contest cases?

Answer: In family provision cases the general rule is the claimant’s costs are paid out of the estate if the claimant is successful. However if the claimant is not successful he or she can be ordered to pay the estate’s costs  (and their own). The judge has the power to make whatever orders he or she sees fit. In some circumstances the costs paid by the estate or any party can be capped by the court. 

Q. Do I need to go to court when contesting a will?

Answer: Sometimes you do and sometimes you don’t. That depends upon the willingness of the parties to settle out of court and save legal fees. Out of the thousands of cases in which I’ve been involved I have only needed to go to a court hearing about 1 per cent of the time. Going to a court hearing is like going into a casino, it’s simply a gamble. Each judge will have a different view of a case and my policy is never to go into court unless you are really certain you’re going to win.

Q. Do I need to go to a solicitor’s office when contesting a will?

Answer: Absolutely not. 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 time and money.   

Q. How long does contesting a will case take?

Answer: Depending upon the complexity of the case, but usually about 6 months in NSW and Victoria for settlements out of court and probably 2 years for a court hearing. Queensland can be a little longer. It also can depend on the jurisdiction because each jurisdiction has different procedures

Q. What factors does the court take into consideration when you contest a will?

Answer: They are listed below.

1. Your financial need is the most important consideration to be established. After that, every State has a different set of factors and the following list is a good guide for all States.
2. Every State has a different set of factors however the following list is a good guide for all States
3. Your character and conduct;
4. Your relationship with the deceased, including the nature and duration;
5. Any obligations or responsibilities the deceased had to you or any beneficiaries of the estate;
6. Any financial or non-financial contribution you made to the estate;
7. The nature and extent of the deceased’s property and any estate liabilities;
8. Your financial resources (including earning capacity) and needs (both present and future) and those of any other applicant or beneficiary;
9. The financial circumstances of any other person cohabiting with you;
10. Any disability you may have, whether physical, intellectual or mental, and any other applicant or beneficiary at the time of the hearing;
11. Your age at the time the application is being heard;
12. Your contribution (if any) to the deceased’s welfare;
13. Any provision made by the deceased to you during your lifetime or from the deceased’s estate;
14. Whether the deceased maintained you, wholly or partly, before his/her death and the extent to and basis on which the deceased did so;

Q. What kind of money or property is not regarded as being part of an estate in will contest proceedings?

Answer: In all States except NSW superannuation funds and jointly owned property do not form part of a deceased estate.In NSW almost all kind of money or property such as superannuation and jointly owned real estate can be regarded as forming part of an estate but only by order of the court. 

Q. What kind of money or property is regarded as being part of an estate in will contest proceedings?

Answer: Only the money or property that is owned by the deceased. For example a deceased person upon his or her death does not own superannuation or jointly owned property. The trustee/s of the superannuation fund distribute in accordance with the fund rules and jointly owned property if owned as joint tenants (as distinct from tenants in common) automatically goes to the other joint tenant. However In NSW the law allows for “Notional Estate” and in family provision claims and under special circumstances superannuation and jointly owned property can be “clawed back” into the estate for distribution.

Q. What is Notional Estate in will contest proceedings?

Answer: This is complex law and only applies in NSW.  In NSW property that is not in the name of the deceased as at the date of death such as superannuation (which is always held in the name of a trustee or trustee company for example AMP or Westpac or an individual person or private company) may in a family provision case be ‘clawed back’ into the estate. The rule can sometimes be applied if the deceased while not actually owning the asset nevertheless had control of the asset and could if he or she wished, changed the nature of the asset or part of the asset to fall within the estate or to be used for his or her personal benefit.

Q. If a will maker leaves a small sum of money, for example $1000, to a family member does that gift prevent that family member from making a claim?

Answer: No it does not. Leaving someone less than what a court thinks is “proper” will not stop that person receiving further provision out of the estate, subject to the claim having merit in other respects.

Q. Can I will be contested by a sibling?

Answer: Each Australian State is different and every case is different however in general terms a sibling of the deceased would only be successful in a family provision claim if he or she could demonstrate to the court that the deceased owed him or her I moral duty to provide for them and in addition that they were special circumstances in the relationship between the applicant and the deceased and in most cases that they lived together in the same household. All of the other conditions would also apply primer early being the health and financial need of the applicant.

Q. Can you contest the will because of dementia?

Answer: Cases where dementia is involved is usually when there is an allegation that the Will Maker did not have the mental capacity to make a will and therefore the making of the will was invalid. In such a case there would be a challenge the validity of the will and not a will contest otherwise known as a family provision claim. After a challenge to the validity of the world either a previous will order intestacy will be the result. After that the termination is it open to eligible applicants to make a family provision claim.

Q. Can probate be contested?

Answer: Yes probate can be contested however the legal term is challenging the validity of the will which means you are challenging a grant of probate of the will. Following a determination in relation to the validity of the will the circumstances will be there over there is no will or there is a valid previous will. In that case if there is sufficient funds in the estate and you are eligible applicant you can then make a family for vision claim.

Q. Can you contest the will after five years?

Answer: Yes it is quite possible to make a family provision claim after a period of five or even 10 years after death. However under normal circumstances you have to make a claim in New South Wales with in 12 months from the date of death and in Victoria with in 6 months from the date of probate and in Queensland within 9 months from the date of death after giving notice of a claim within 6 months from date of death. However very few cases are successful when made out of time. You must demonstrate to the court that there was a special reason for not having made your claim within the prescribed time and you must show that your delay in making a claim has not been to the detriment of the estate or the beneficiaries named in the will. If the estate has already been distributed before you lodge your claim out of time it will be extremely difficult to obtain a successful judgement.

Q. Can you contest a will after probate?

Answer: yes, you can contest I will after probate has been granted. In fact in New South Wales and Victoria probate is required before a family provision order will be made by the court either by consent or by judgement. In Queensland probate is not required before orders of the court either by consent or judgement are entered. In New South Wales you may commence proceedings for family provision before probate is granted however it will not be made until probate is granted.

Q. Can a beneficiary contest the will?

Answer: Yes, I beneficiary may certainly contest a will and claim further provision then that made for him or her in the will. The important consideration is the size of the estate and the competing claims against the estate. So for example if a beneficiary received a generous some of money out of the estate and the estate was not large then in that event it is unlikely the claimant would receive further provision a list of course there are special circumstances surrounding his or her need.  A more common example however is whether a beneficiary is left a small legacy and the estate is lasrge enough for the court to increase the beneficiary share of the estate.

Q. Can a stepchild contest I will?

Answer: Yes, a stepchild can in certain circumstances contest I will under family provision law in New South Wales Queensland and Victoria and then do other States in Australia. However like all applicants seeking provision out of interstate there are certain requirements to present to the court. In the case of a step child who is she is often required to demonstrate that the deceased owed him or her a moral duty and of course the applicant must also show a financial need for provision and in some cases special circumstances as to why he or she should be considered to be provided for. 

Q. Can a parent contest their child's estate?

Answer: Yes, in certain circumstances a parent would be successful in claiming provision from his or her child's estate. In New South Wales and Victoria the parent would need to show special circumstances and of course financial need. In Queensland parents specifically named as eligible applicants in the Succession Act.

Q. Can I contest to my fathers will?

Answer: Yes, you are eligible in all States of Australia to contest your fathers will however your age is very important. If you are under 18 years of age or in some States under 25 years of age you have some special eligibility. If however you are over 18 years of age and you are self-sufficient and no longer relying upon the support of your parents you would have to demonstrate to the court that the deceased are you a moral duty to provide for you and in addition you have to demonstrate the usual requirement of financial nerd.

Q. Can I contest a will because of undue influence?

Answer: No, you cannot contest I will because of undue influence. A claim of Undue influence is in relation to a claim that the Will Maker was influenced and therefore the will is invalid. These cases are extremely difficult to prove and indeed very few cases in the last 100 years have been successful. There may however be some evidence that the court will take it into consideration in relation to conduct of family members concerning the making of the will. In family provision claim is most courts will take into consideration the conduct of the parties to the claim and the family members associated with the claim. An allegation that a family member influenced the Will Maker in making a will in a particular way is something that the court might take into consideration depending upon the circumstances of the case

Q. Can I contest a will after the estate has been distributed?

Answer: Yes and no. If you have made your claim within the prescribed time limit and you had notified the executor or administrator of the estate of your anticipated claim you will be able to make the claim and seek orders from the court for a return of distributed assets. Whilst the legal framework is in place for the court to order beneficiaries to return distributed funds or assets that does not guarantee the court order will be adhered to. If for example the beneficiaries lost the money at the races there is no guarantee that the money will be regained especially if the beneficiaries are insolvent. In such a case the executor or administrator who distributed the estate would be personally liable to pay any court order in your favour. You would in those circumstances hope that the executor or administrator had sufficient personal funds to pay you. If your claim was lodged outside prescribed time limit and the estate was distributed then in that event you would most likely not be entitled to an order in your favour. 

Q. How to begin contesting a will?

Answer: Family provision claims are commenced in the State you are claiming by filing in court an application naming a defendant to the proceedings who is usually the executor or administrator of the estate. If there is no executor or administrator in most circumstances you are able to nominate the beneficiary most entitled to the proceeds of the estate. However I suggest you would not commence proceedings until you had sort good legal advice whereupon your solicitor would have received details from you of your case and would assist you in preparing your affidavit of evidence which is usually filed in court together with your originating application.

Q. How to make a claim against in the estate?

Answer: Making a claim against the estate is really contesting the will of the deceased or in other words making a family provision claim. Your first step is to ascertain whether or not you are an eligible person entitled to make a claim. Actually, anyone can make a claim however if you are found not to be eligible you will have no hope of obtaining an order in your favour and you will certainly have an order against you for the estate legal costs. So the first step in making a claim is to ascertain if you are eligible person which can be quite complex and we suggest you contact a lawyer who specialises in this area. In addition to being eligible the next most important factor is whether you can demonstrate to the court that you have a financial need. Financial need means can mean different things to different people and different judges. Your financial needs is also measured against the size of the estate. For example if the estate is small, and the court regards anything less than about $350,000 is being small you would need to demonstrate immediate financial need. If however for example the estate consisted of several million dollars your financial need might be considerably less but nonetheless sufficient for you to obtain an order in your favour for provision out of the estate.

Q. When must I claim be made against an estate?

Answer: Family provision claims must be filed in court at various times depending upon each state law. In New South Wales a claim must be lodged within 12 months of the date of death. In Victoria I claim must be lodged within 6 months of a grant of probate. In Queensland a claim must be lodged within 9 months from the date of death however notice of the claim must be given within six months from the date of death. A claim can be made at any time after death no longer than the time stated above however generally a claim would not be lost in court until all attempts were made to settle the distribution of the estate amongst family without the need for court process. If all negotiations fail then in that event you and your solicitor would prepare your claim or providing evidence in the form of an affidavit to be filed in court.

Q. How is a claim commenced in New South Wales?

Answer: Your claim is commenced in New South Wales by filing a summons together with your affidavit of evidence in support of your claim. You would then serve the defendant in the proceedings (who is usually the executor) with the summons and affidavit and commence negotiations to settle the matter. Usually about 14 to 21 days after filing your summons the court will require your legal representative to attend court for what is known as a Directions Hearing and at that hearing the judge will normally set a timetable leading to a mediation of the claim.

Q. Who can bring a claim to contest a deceased estate?

Answer: The only people who can make a family provision claim are those who are eligible according to each State law. The law is slightly different in every State however in general terms you would need to be a relative of the deceased or living in the same household as the deceased. This is an over simplification of eligibility however eligibility can be quite complex because every case is different and you should seek the advice of an experienced lawyer in this regard.

Q. Do you need to live in the same State where the deceased lived?

Answer: No, you do not need to live in the same State where the deceased lived to make a family provision claim. The main criteria is that the deceased had assets in the State where you are going to commence proceedings.

Q. What if the deceased left me inadequate provision?

Answer: If the deceased left you what you consider to be in adequate provision you are entitled to contest the will and in doing so you would need to be an eligible person and then you would also need to demonstrate to the court that you have a financial need greater than the to you provision in the will. These cases are all about financial need.

Q. What if my father failed to provide for me in his will?

Answer: If your father failed to provide for you in the will at all or just left you a small amount you may or may not be entitled to provision in your favour. You would need to demonstrate to the court that you had a financial new stronger than the other beneficiaries and such that was able to be paid from the assets of the estate. For example if the estate was small you need to demonstrate a very strong financial needs. For example if the estate was large you would still have to demonstrate financial need but not quite as dire as otherwise.

Q. Are jointly owned assets included in a will contest?

Answer: Jointly owned assets can be held either as joint tenants or tenants in common. If the deceased held property in his or her name together with another person as joint tenants then in that event the deceased share of the property is automatically transferred to the surviving joint tenant on the death of the deceased and does not form part of the assets of the estate. In New South Wales the notional estate provisions allow, in certain circumstances for the 1/2 share of the deceased in the joint tenancy to be clawed back into the estate for the purpose of providing funds for a family provision order. However these notional estate rules do not apply in Queensland or Victoria. In Queensland and Victoria the deceased share of a joint tenancy will be automatically transferred to the survivor and will never form part of the estate except in circumstances of foul play such as forgery or fraud or undue influence.

Q. Are assets held as tenants in common included in a will contest?

Answer: if the deceased owned property as tenants in common that property forms part of the estate of the deceased and will be taken into consideration when order is being made for provision to a claimant. It is only the deceased's share of the tenancy in common that forms part of his or her estate and not the property or interest in the propery of the other owners.

Q. What are the legal costs if my claim is successful?

Answer: if your family provision claim is successful it automatically follows that your costs will be paid out of the estate. However legal costs are divided into two sections. Firstly there are your private costs commonly referred to as solicitor client costs. Secondly there are costs referred to as party party costs. Depending upon the circumstances of the case in court I judge will make a determination as to precisely what costs are to be paid out of the estate and what costs are to be paid by the claimant. The best way to describe the costs is to say for example the solicitor client costs amounted to $50,000 it is most likely that the party party costs would be approximately $35,000. The estate in normal circumstances would be required to pay $35,000 towards the claimants costs and the claimant would be required to pay his or her solicitor the additional $15,000 from his or her funds from the provision granted.

Q. What are the legal costs if my claim is unsuccessful?

Answer: if your claim is successful at mediation part of the negotiations will be in relation to legal costs. There will be an amount of legal costs added to the provision granted to you. If you are unsuccessful at mediation it will be a matter of negotiation with the estate representatives to ascertain what if any costs you are required to pay the estate following your unsuccessful claim. If you are unsuccessful at a hearing before a judge in most circumstances you will be required to pay your own legal costs (unless you're solicitor contract is no win no fee) and the legal costs of the estate. Sometimes however in special circumstances I judge may make an order for a play with costs to be paid out of the estate.

Q. Are all cases required to go to mediation?

Answer: Yes, except in unusual circumstances it is compulsory for all contested wills matters under family provision legislation to be required to mediate the dispute before setting the matter down for hearing before a judge

Q. Are most will contest cases settled without the need to go to court?

Answer: in New South Wales approximately 80% of members are settled without the deed for a hearing before a judge. In Victoria the percentage is probably closer to 90% and in Queensland probably about 95% be settled without the need for a court hearing. The Butler Group's combined percentage is about 99%.  

Q. Is superannuation money included in a will contest?

Answer: in Victoria and Queensland superannuation money is not included in the estate except in circumstances where the trustee of the superannuation fund makes a determination to transfer the superannuation funds to the estate. In New South Wales with the notional estate rules superannuation is not automatically included in the estate for distribution amongst beneficiaries or claimants unless they could determines that there is insufficient actual funds in the estate and make sure to close the back superannuation money in accordance with notional estate rules.

Q. Do I have a claim against all assets of the deceased estate?

Answer: When contesting a will in New South Wales I claimant will initially seek provision out of the estate from the actual estate of the deceased and if there are insufficient funds for orders to be made the court may look further to the notional estate. When contesting the will in Victoria or Queensland the only friends that are available for provision to a claimant are those that were actually owned by the deceased as at the date of his or her death

Q. How does the court decide if I have a financial need?

Answer: Almost everyone has financial need of some sort. The court Will look into the details of your assets and liabilities and your income and expenses and those details of your partner and compare those details with other competing claims or beneficiaries. So, if you estate large there mate will be sufficient funds to provide for all competitors even though the financial need of some competitors may not be as grave as others. 

Q. What are the grounds for contesting a will?

Answer: The grounds are different in each State. However the general rule is that to be successful when claiming provision or extra provision out of the estate you need to demonstrate to the court that you are an eligible person, in general terms, a family member or partner and that the deceased had a moral duty to provide for you because of your financial position all your poor health. 

Q. How do I get a copy of the will?

Answer: The rules in each State provide that the holder of the will whether it be a solicitor or a private person must provide a copy of the will to certain people. In general terms the people entitled to a copy of the will are those who are named in the will or named in a previous will owe would be entitled on and test to see if all wills were found to be invalid or with you entitled to claim family provision. So, if you are in titled to a copy of the will you can write to the person whom you know is holding the will and ask for a copy. From my experience some solicitors do not know the rules and you may be required to seek the help of your own solicitor to get you a copy.

Q. Can I contest the deceased estate if there is no will?

Answer: Yes you can contest this date if there is no will. If the rules of intestacy apply to your disadvantage and you believe you are entitled to further provision and you can support your claim either because of your age or poor health or financial position you may be successful depending upon the competing claims.

Q. What happens if the will of the deceased found to be invalid?

Answer: If if the deceased will is found to be invalid the revocation clause at the beginning of that will is almost certainly also going to be invalid. In those circumstances the previous will will be valid and is there was no previous will all the previous will is now in effective the rules of intestacy will apply and they various family members will share in the distribution of the estate in accordance with those rules.

Q. Can grandchildren contest a will?

Answer: Yes grandchildren are entitled to contest the will under family provision legislation in each State however there are special rules concerning grandchildren. In general terms a grandchild must have lived in the same household as the deceased or been financially supported by the deceased and that the deceased had a moral duty to the grandchild to provide for the grandchild out of his or her estate.

Q. Can adult children of a deceased person contest a will?

 Answer: Yes an adult child of a deceased person is eligible to contest the will in each State however will only be successful if they have more financial need compared to other competing claims or have some form of disability or ill health. It has often been said by lawyers and judges that an able bodied child of a deceased is not automatically entitled to provision out of interstate. If you are an able bodied adult child of a deceased person your client will only be successful if you can show you have a greater financial need than the other competitors and that there is sufficient money in the estate to provide for all competitors.