Contesting Wills & Estate Litigation: Gold Coast Lawyers

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:

1. 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
2. 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 give 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.