Contesting Wills: Gold Coast Lawyers
Wills & Estates
Have you been excluded from someone’s Will?
Our Gold Coast Will dispute experts are here to help you get what you are entitled to.
If you have been left out of someone’s Will, or have not been adequately provided for, you can make a Family Provision Application to the Supreme Court for your rightful share of a deceased person’s estate.
Succession Law is very complex. Attwood Marshall Lawyers are proud to be highly reputed in the legal industry with a team of estate litigation specialists who practice exclusively in this area of law. We are here to assist our clients who are faced with the contentious issues that can arise over Wills when a loved one passes away.
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Someone can contest a Will if they believe they have been unfairly left out of a Will or if they have not been adequately provided for under the terms of a Will. This can be done by making a Family Provision Claim. If there is no Will, under the rules of intestacy, a person that falls within the categories of eligibility set by legislation can make a Family Provision Claim.
To be an eligible person who may apply to the court for a family provision order, you must be:
- A spouse (such as husband or wife, de facto partner, civil partner, or dependent former husband, wife, or civil partner);
- A child of the deceased person (this includes an adopted child or stepchild); or
- A dependent of the deceased person. This could be a parent of the deceased person, or the parent of a surviving child of the deceased person under the age of 18 years, or a person under 18 years old, who was being wholly or substantially supported or maintained by the deceased person at the time of their death.
Yes – strict time limits apply for anyone claiming family provision.
Within six months from the date of death, a claimant must notify the administrator or executor of the estate in writing of their intention to bring a family provision claim. The claim must then be filed in court within nine months from the date of death of the deceased.
If you miss these time limitations, it is at the court’s discretion if an application will be heard out of time. The onus is on the applicant to establish sufficient grounds for extending the time limit. The court will consider:
- if there is an adequate explanation for the delay;
- whether the beneficiaries are prejudiced; and
- if the estate remains intact.
Firstly, eligibility of the person making the family provision claim needs to be established. Once this is confirmed, the legal test applied to family provision applications is as follows:
- Whether adequate provision has been provided for the applicant’s proper maintenance, education and advancement in life under the Will of the deceased. In cases where there was no Will, the court will determine whether adequate provision has been provided for the applicant under the rules of intestacy; and
- If any provision ought to be made from the estate in favour of the applicant.
All relevant circumstances will be examined by the court. The below factors will be considered:
- The location and value of the deceased person’s estate
- The relationship between the deceased person and the applicant
- The applicant’s financial circumstances, which include considering their current and future financial needs
- The health and financial circumstances of the beneficiaries of the estate
- Whether the applicant has any mental, intellectual, or physical disabilities.
These types of legal proceedings can be expensive as they usually involve Supreme Court litigation. The costs involved in bringing a family provision application will depend upon:
- The issues you choose to pursue
- The extent you wish to instruct your lawyers to pursue the issues
- The conduct of all parties to the litigation.
The actual costs incurred can be affected by your instructions and the conduct of the executors defending the estate. The greater amount of cooperation you receive from the executors of the estate will result in less fees overall.
Usually, the successful party in legal proceedings will have some of their legal fees paid by the other party, at the discretion of the court. Specifically, in relation to legal proceedings to contest a Will, the court may have regard to:
- whether a party has failed to comply with the rules or a practice direction of the court;
- whether irrelevant material was put before the court;
- the size of the estate;
- any offer of settlement made by the parties; and
- any other factors considered relevant.
If the applicant is unsuccessful in their claim, the Judge may make no order as to costs. This means that the applicant would then be responsible to pay his or her own legal costs. The applicant may also be required to contribute to the executor’s costs of defending the proceedings.
This is why it is extremely important to seek legal advice from a lawyer who specialises in estate litigation, so that your case can be assessed accordingly, and you can find out where you stand from the very start. Our Gold Coast estate litigation lawyers will advise you on the strength of your case and likely outcome, including any expected costs.