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How To Contest A Will In Australia

Making a claim against a deceased estate can seem like a daunting prospect. A person intending to make a claim needs to understand the eligibility requirements and how to establish grounds to contest a will in Australia. A prospective claimant needs to review the provisions contained in the will and then attempt to negotiate a compromise with the executor of the estate. Finally, a claimant must understand the possible consequences of officially filing with the Supreme Court for review of the deceased’s testamentary dispositions. This article outlines how to contest a will in Australia.

How To Establish Eligibility To Contest A Will

A preliminary step in the process is for the claimant to check whether they are eligible to contest a will. The list of eligible persons differs across jurisdictions in Australia, but there are some common principles of eligibility. For instance, a husband or wife or de facto partner has the right to contest the provisions of their spouse’s will anywhere in Australia. A child of the deceased also has an automatic right to dispute their parent’s will, although in some jurisdictions this is predicated on certain conditions. There is often also statutory provision for those who cohabitated with or were dependent on the deceased, but it is essential that a claimant consult a solicitor with expertise in the specific jurisdiction to check their eligibility.

How To Contest A Will In Australia: Review The Will

Another important first step is for a claimant to review the testator’s will. A claimant needs to know the contents of a will in order to understand the size of the estate and the testator’s instructions relating to liabilities and the distribution of assets. In many jurisdictions in Australia, certain people have a statutory right to inspect the will before probate: even where there is no legislative provision, there is common law precedent to support the rights of interested parties to see the will.

How To Establish Grounds To Contest A Will

A claimant must then make note, based on the will, of any grounds they have to contest a will in Australia. It is vital that the claimant establish that the testator had a responsibility to provide for them, and failed to leave adequate provision to provide this support in their will. It is also imperative that the claimant proves that they have a financial need for support from the deceased estate.

Notify The Executor And Negotiate

Once the claimant has seen the will and determined that they have grounds to go ahead with a claim against the estate, they must notify the executor of their intention so that the executor will stop the distribution of the estate. It is also highly preferable if the claimant can reach a settlement with the executor before escalating the matter to a court hearing. An executor has the authority to make provision from the estate for the claimant if they feel that the claim is reasonable and likely to be successful at trial. As such, an executor must impartially consider the merits of any settlement offer from the claimant. The executor is charged with defending the estate, but only when the expense of such legal action is warranted.

Proceed To Court Hearing

Unfortunately, not every claim is settled prior to trial. When negotiations are unsuccessful, a claimant can file a claim with the relevant Supreme Court. The parties will have a hearing where each side of the case is heard. The court can choose, based on the presented testimony and evidence, to reject the claim or order a redistribution of the estate to benefit the claimant.

A court hearing is the most expensive step in the process of contesting a will. The court may order that the estate reimburse a successful claimant’s costs, or alternatively, if the claimant is judged to have been dishonest or unreasonable, the court may order the claimant to pay the estate’s legal costs. The court has absolute discretion to order costs as they see fit, so it is difficult to predict the outcome.

How To Contest A Will Within Time Limits

There are statutory time limits that apply to contesting a will in Australia, but they vary depending on the particular jurisdiction. There is a requirement in some states and territories for a claimant to inform the executor before filing a claim against the deceased estate. The executor must be informed of a claimant’s intent to contest a will within six months to forestall the distribution of the deceased’s bequests after the limitation date.

A claim against the deceased estate often called a Family Provision Claim, must be filed with the Supreme Court in the relevant jurisdiction within the time frame. Only Queensland counts from the date of the testator’s death, with an allowance of nine months before the deadline to contest a will. All other jurisdictions count from the date that probate was granted. The time limit can be as little as three months from the date of probate, or as long as a year. Tasmania has the shortest time limit of three months, with Victoria, South Australia, Western Australia and the Australian Capital Territory mandating six months. The longest time limits apply in New South Wales and the Northern Territory, with a deadline of one year.

How To Contest A Will After The Time Limits

It may be possible for a claimant to contest a will after the statutory time limit, but only if they have sufficient justification for the delay. The court must give explicit consent for this out of time claim, which they may give if the reason is persuasive and there is minimal impact on the estate and the existing beneficiaries. Several jurisdictions, including Victoria, South Australia and Tasmania, will not allow an out of time application if the estate has already been distributed according to the instructions in the will.

The Armstrong Legal contested wills team has extensive experience in the field and can help you understand how to contest a will in Australia. For legal guidance or representation in a claim against a deceased estate, please phone our offices on 1300 038 223 or arrange for an appointment with our team.

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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