Attwood Marshall Lawyers Estate Litigation Senior Associate, April Kennedy, explains the process that takes place when someone contests a Will and some tips on bringing a claim.
What is a Family Provision Claim?
A Family Provision Claim, commonly referred to as ‘contesting a Will’, is a claim that is filed by a person (usually, a child or spouse, or a person who was financially dependent on the deceased) with the Court to seek provision, or greater provision, from someone’s deceased estate. Technically, you are not contesting the validity of the Will as such in a provision claim. You are challenging the amount that you are entitled in the estate.
In order to contest a Will and bring a provision claim against the estate, you must be an eligible person. To be eligible, you must be someone who falls within one of the categories outlined in your state or territory’s specific legislation:
- In New South Wales, eligible persons are outlined in the Succession Act 2006
- In Queensland, eligible persons are outlined in the Succession Act 1981
- In Victoria, eligible persons are outlined in the Administration & Probate Act 1958
- In South Australia, eligible persons are outlined in the Inheritance (Family Provision) Act 1972
- In Tasmania, eligible persons are outlined in the Testator’s Family Maintenance Act 1912
- In Northern Territory, eligible persons are outlined in the Family Provision Act 1970
- In Australian Capital Territory, eligible persons are outlined in the Family Provision Act 1969
Although the states differ slightly, an eligible person is usually a spouse, ex-spouse, child, step-child, grandchild, or someone who is a financial dependant of the deceased. There are differences. For example, in Queensland a grandchild is not an eligible person unless they are a minor and financially dependant upon the deceased.
Timeline involved when someone contests a Will
Generally, a Family Provision Claim can take anywhere up to 12 – 18 months from date of death to resolve. However, there are strict time limits for giving notice of a claim and filing Court proceedings. For example, in QLD, you must give written notice of a claim within 6 months of the date of death AND issue Court proceedings within 9 months of the date of death. In NSW, proceedings must be filed within 12 months of the date of death.
We have summarized the steps involved:
Step 1: Get legal advice from a solicitor, or law firm, who is experienced in estate litigation.
An estate litigation lawyer can assess your prospects of success from the start, and ensure you do not waste your time, money, and energy on a claim that is unlikely to succeed. We have seen many instances where someone has sought the advice of a lawyer, or law firm, who are not experienced in this area of law or do not have the necessary experience in estate litigation. This tends to be more common for executors who must respond or defend a Family Provision Claim. The executor may find it easier to seek advice from the lawyer who drafted the original Will, not realising they can seek advice elsewhere. It is often small firms that may have drafted a simple Will for the deceased and have not provided proper advice. This creates a potential conflict of interest as they can become witnesses in the case and may face an action against them for professional negligence.
Estate litigation is a complex area of law and the legislation differs between states and territories. This area of law is constantly evolving, and litigious matters can become quite complicated, depending on the nature of the case or the complexity of the estate.
It is important to research the lawyer, or law firm, you choose to represent you to ensure they have experience in handling these types of cases.
Step 2: After receiving preliminary advice from your lawyer, you should be provided with written advice in relation to your claim and your prospects of success, along with advice about any time limits for giving notice of your intended claim and filing in the Courts. Your lawyer should also provide you with a cost disclosure document. The cost disclosure document will include detailed information about how your lawyer charges and their terms of engagement. Once you have signed the cost disclosure document, you have then officially engaged your lawyer to represent you.
Step 3: Obtaining information and evidence relevant to support or defend the Family Provision Claim.
The next steps that follow will depend on the timing of your claim or when you seek legal advice. There are strict time limitations that apply to Family Provision Claims. For example:
- In NSW, a person making a claim has 12 months from the date of death to file their family provision claim.
- In QLD, a person has 9 months from the date of death to file their family provision claim.
- In Victoria, a person has 6 months from the date of the grant of Probate or administration to file their family provision claim.
If you seek advice early on, there may be room to negotiate with the other side on an informal basis. The benefit of seeking advice early on is that you have the opportunity, and to resolve your matter and minimize the costs impact on the estate. In the lead up to the expiration of the limitation period, a client can expect that their lawyer will:
- Take detailed instructions from them about their personal and financial circumstances;
- Take instructions about their relationship with the deceased and the other parties to the proceedings;
- Take instructions about their future needs; and
- Any other matters that might be relevant to support or defend the Family Provision Claim.
What happens if the Family Provision Claim is filed with the Court?
Step 4: If negotiations fail, then it will be necessary to file an application, or defend an application, through the Court process.
Sometimes, negotiations may fail, and court proceedings must be commenced. Often, court proceedings may not start until 9 months or 12 months after someone has passed away. The person making the claim must support their claim with a detailed Affidavit which sets out all of the information referred to above.
Once court proceedings are commenced, all parties to the claim must participate in the court process in order to resolve the claim. Each state and territory have their own alternative dispute resolution processes in place, which require the parties to attend a compulsory mediation or settlement conference.
The lead up to mediation
Step 5: Preparing for mediation or settlement conference
For the person making the claim, most of the work is completed in months leading up to filing of the proceedings. When a Family Provision Claim is filed, it must be supported the applicant’s Affidavit.
However, the party defending the claim (the executor or administrator of the estate), is required to prepare Affidavits, and perform different tasks, after the claim has been filed.
For the party defending the claim, an executor or administrator can expect their lawyer to take detailed instructions in response to the claim, including:
- The nature and value of the estate;
- What steps have been taken to administer the estate;
- Identify the beneficiaries of the estate and take detailed instructions from them about their personal circumstances;
- Details of their relationship with the deceased, and with the person making the claim.
The executor is also required to notify all the interested persons in the estate that a claim has been made. That includes the beneficiaries and any other potential applicants who may have a claim on the estate.
The executor must file and serve these Affidavits before the mediation.
The mediation process
Step 6: Attend a mediation or settlement conference.
Before COVID-19 changed the way we work, all parties were required to physically attend a mediation. For example, if a Family Provision Claim was filed in New South Wales, and one of the parties lived in Western Australia, then they were required fly to Sydney CBD to attend mediation. The same applied to the lawyers, barristers, and anyone else involved in the mediation. All parties needed to be in the same room at the same time.
However, COVID-19 has changed the way we operate, settlement conferences and mediations are now being conducted via audio/visual link by Zoom or Microsoft Teams. It is becoming less common for physical mediations to take place.
Claims that cannot be resolved at mediation
Step 7: For the claims that cannot be resolved at mediation, the next step is to prepare for a hearing or trial.
More than 80% of Family Provision Claims that are lodged through the Court are resolved by way of mediation. However, some cannot be resolved, and they will proceed to a hearing or trial before a Judge.
There is a considerable amount of work that goes into preparing a matter for hearing, which means that there are significant legal costs incurred by all parties.
In addition to the costly consequences of litigation, hearing dates may not be available until a year or 18 months after the mediation. Many people have the attitude that they would prefer to resolve the matter at the earliest opportunity and be involved in litigious court proceedings that may carry on for years.
What happens at a trial/hearing?
Step 8: Attend a Court hearing/trial
A hearing or trial is often what you see in movies or TV shows, where all the parties are required to go to Court and the matter is heard before a judge. This is often the first time the parties step foot in a Court throughout the entire process.
The parties are required to take the stand and be cross-examined by opposing Counsel. This can be a daunting and overwhelming process for some people, which is often why matters settle early on.
At the conclusion of a hearing, a judge will take some time to deliver a judgement, bringing the matter to an end (provided there is no appeal!).
In summary, from date of death to the delivery of a judgement at the conclusion of a hearing/trial, a period of years may have passed.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers have a dedicated team of experienced estate litigation lawyers who practice exclusively in this complex area of law.
We are here to help you get what you are fairly and legally entitled to, or to uphold the wishes of the deceased if you are an executor of an estate and defending a claim.
Most estate litigation cases are accepted on a “No Win, No Fee” or deferred payment basis. There are not costs required upfront to commence your claim (subject to our determination of you having reasonable prospects of success).
To find out where you stand and discuss a dispute over a Will, contact Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email email@example.com, or call our 24/7 phone line any time on 1800 621 071.