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Four Mistakes To Avoid When Contesting A Will

In Australia, contesting a will can be a complicated and intimidating process, which is why it is advisable for a claimant to engage legal representation. An experienced solicitor can advise on the best legal approach, negotiate for an early settlement and critically, guide a claimant to prevent costly mistakes. This article explains four common mistakes to avoid when making a claim against a deceased estate.

  1. Act Without Delay

After the death of a loved one, time can pass unnoticed before a prospective claimant turns his or her attention to legally disputing the terms of the will. It is essential that a claimant understand that there are time limits to contesting a will, and they vary according to the location of the deceased estate. There are two types of time limit that a claimant needs to be aware of when contesting a will. In Australia, a claimant must notify the executor of the estate that they intend to contest the will within six months of the death of the testator or the date of probate.  An executor is free to begin the distribution of the assets of the estate if they have not been notified within six months.

The second time limit is the deadline to file a formal claim against the estate with the relevant Supreme Court. Depending on the statutory provisions in each jurisdiction, the time limit is counted either from the date of the testator’s death, or from the date that the court issues a Grant of Probate. An overview of the time provisions in each state is set out below:

A claimant may be able to make a late application, but only with the leave of the court. The criteria for obtaining permission to lodge a late application varies slightly across jurisdictions, but generally, the court will only make this allowance if the claimant can sufficiently justify the delay, the executor has not already distributed the deceased estate, and the executor or existing beneficiaries do not object to the application.

  1. Negotiate With The Executor Of The Estate

When the claimant contacts the executor of the estate to give notification of claim they should also take the opportunity to open negotiations with the executor. While an executor or administrator is charged with defending an estate against challenge and contest, they are obligated to try to settle valid claims against the estate in order to avoid costly litigation. As such, the personal representative must weigh the merits of any claim against the rights of other beneficiaries and consider the likely outcome of a court hearing. An experienced solicitor acting on behalf of the claimant will be able to negotiate with the executor privately or at pretrial mediation and hopefully avoid a court hearing altogether.

  1. Recognise A Good Settlement Offer

This leads to the next mistake to avoid when contesting a will. It can be difficult for a claimant to know when to accept a settlement offer, instead of holding out for a larger amount. Most people are “first-time” claimants and it can be a confusing world of legal precedents and rules that influence how much any individual should expect to receive from a deceased estate.

A claimant must be careful, not only because they could refuse a good offer and receive less under a court order, but because if that happens, the court may award adverse costs against the claimant for failing to accept a reasonable offer and thereby incurring costs for the estate. In that case, the claimant may have to pay their own legal costs and reimburse the estate for the costs of defending the motion.

  1. Engage An Experienced Solicitor

A claimant can avoid many mistakes by engaging competent legal counsel. Choosing not to engage a solicitor may cost a claimant more in the long run in lost opportunity or mistakes. A solicitor can advise a claimant at the outset on whether they are an eligible party with the necessary standing to make a claim against the estate. In addition, a solicitor will be able to advise whether the claimant has a good case for provision from the estate. This ensures that the prospective claimant does not waste time or money pursuing a claim without merit.

A solicitor not only has knowledge of the relevant law, but they can also act as an advocate and representative when dealing with other lawyers, representatives of the estate and court officers. A solicitor can negotiate directly with the executor of the estate to reach a swift agreement. In the event that the case proceeds to court, an experienced solicitor has knowledge of court procedures and they can rebut the defendant’s arguments and evidence.

These are just a few commonly made mistakes to avoid when contesting a will. Engaging the contested wills team at Armstrong Legal can help you avoid these missteps and improve your chances of a successful outcome to your claim. Please contact our experienced and helpful team to talk over the specifics of your case or call 1300 038 223 to make an appointment.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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