6 Things to Know about Contesting an Estate

Wills and Estates

  • Contesting a Will

If you’ve been left out of a Will entirely, or are going to receive a lesser share of the estate than you consider you are entitled to, you might be considering making a family provision claim. Here are some things you should know.

  1.   Time limits apply.

In ACT, a family provision claim must be made within 6 months of the date of grant of probate or grant of letters of administration.

In NSW, a family provision claim must be made within 12 months of the date of death.

  1.   Are you an eligible person to make a claim?

In ACT, you are eligible if you are:

–        a ‘partner’ of the deceased person (a partner includes a married or de facto spouse or civil union partner); or

–        a person who was in a ‘domestic relationship’ with the deceased person for 2 or more years continuously at any time (a domestic relationship requires evidence of a personal or financial commitment and support of a domestic nature); or

–        a child of the deceased person; or

–        a stepchild of the deceased person (only if the stepchild was maintained by the deceased person immediately before his or her death); or

–        a grandchild of the deceased person (but further eligibility criteria applies); or

–        a parent of the deceased person (but further eligibility criteria applies).

In NSW, you are eligible if you are:

–        a married or de facto spouse of the deceased person; or

–        a child of the deceased person; or

–        a former spouse of the deceased person; or

–        a person with whom the deceased person was living in a ‘close personal relationship’ at the time of the deceased person’s death; or

–        a person:

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

  1.   What will the Court consider in assessing your claim?

Just because you are an eligible person to bring a claim, that by itself doesn’t mean your claim will be successful. The Court takes into account many factors in coming to a decision, such as:

–        the character and conduct of the applicant;

–        the nature and duration of the relationship between the applicant and the deceased;

–        any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons;

–        any contributions (including any in the capacity of homemaker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person;

–        the income, property and financial resources of the applicant and the deceased;

–        the physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment;

–        the financial needs and obligations of the applicant and the deceased (during the life of the deceased);

–        the responsibilities of either the applicant or the deceased (during his or her life) to support any other person.

  1.   How long might it take?

Each case of course is different, but a realistic timeframe is 12 to 18 months if the matter proceeds to Court. Many matters settle before a final Court hearing, often through mediation or other settlement negotiations between the parties. If matters settle at an early stage, they often do so between about 3 and 6 months.

  1.   How much will it cost?

We provide up-front disclosure of the estimated costs of your individual matter. The final costs depend on whether there is early settlement or if the claim proceeds to a final Court hearing. Costs could be in the order of $10,000.00 to $50,000.00 or more, depending on the matter.

If your claim is successful, you can expect to recover the majority of your costs from the estate.

  1.   Contesting an estate is different to challenging the validity of a Will.

Contesting an estate usually happens because there has been inadequate provision in the Will for the person bringing the family provision claim against the estate.

Challenging the validity of a Will is usually an issue about the capacity of the Will-maker when he or she made the Will (lack of testamentary capacity and/or undue influence).