Contesting a Will

Can I Contest A Will?

If you think that a spouse or family member did not have capacity to write their Will, or if they were unduly influenced by someone to make a will on certain terms, then you may be able to bring an application in court that contests the validity of that Will.

What Can I Do If I Have Been Left Out Of A Will?

Have you been left out of a Will, or received a gift that you think is unfair or inadequate? You may be able to apply to the court for ‘further provision’ from the Estate. This is different from ‘contesting a Will’ because in these applications, the Will is valid, however you may not have been adequately provided for. This is called a ‘Family Provision Application’ (or FPA for short).

Who Can Bring An Application For A Better Provision In An Estate?

A Family Provision Application (‘FPA’) is an application to Court for a share, or a larger share, from the estate of a deceased person. 

You can make a FPA if you are an ‘eligible person’. Eligible person is defined as: 

1. Spouse of the deceased. This includes a de facto spouse;  

2. Child of the deceased. This includes step-children or legally adopted children; 

3. Dependant. Someone who was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of the maintenance or support and the circumstances of the case 

I Was Left $1 In A Will. Does That Mean I Cannot Make An FPA?

This is a common misconception, and many people think that, by leaving a person a notional amount, for example a dollar, that the beneficiary is then prevented from apply to the court. The Succession Act talks about adequate provision and the court looks at all of the relative facts and circumstances to decide if adequate provision has been made for the applicant. 

Are There Any Time Restrictions Applicable When Contesting A Will?

Yes. Strict time limits apply, however in some circumstances leave of the court will be granted to bring an application after the time has expired. However, it is important that you obtain legal advice as soon as possible, to ensure you do not lose your legal rights.  

In Qld, notice of your intended application must be given within 6 months and you must file your FPA in the court within 9 months of the date death. In NSW the claim must be filed with the court within 12 months of the date of death (where the deceased died on or after 1 March 2009).

Do I Have To Go To Court To Contest A Will?

Most FPAs are resolved by negotiation or at mediation before the need to go to court. The parties are expected to attend mediation Prior to going to trial in court, and we aim to resolve your dispute through mediation. Mediation is more cost effective, less stressful on the parties and can be a way of maintaining family relationships. However, if you are not satisfied with the outcome at mediation, we are fully prepared to take your application to trial. 

What Are The Costs Involved? Do I Have To Pay Legal Fees Upfront?

Court proceedings can be expensive, which is why we always aim to resolve your matter as cost effectively as possible. We deliver the highest quality legal services you can expect from the top end of town, but we do not have the ‘top tier’ law firm prices. Our Trisch Partridge is highly experienced in estate litigation and has achieved outstanding results and high levels of client satisfaction. We will provide you with frank, pragmatic advice on the best way to resolve your matter and maximise your chances of a great outcome. 

In many cases, we can offer a ‘deferred fees’ arrangement so that you do not have to pay any legal fees up front. Contact us today to see if you are eligible for deferred fees.  

Can You Provide Me With A Case Appraisal About The Prospects Of Success?

Yes. We aim to provide our clients with a case appraisal at our initial consultation. Our expert team will advise on your prospects and guide you step by step through this complex process.

I Am The Executor Of An Estate – Can You Help Me?

We offer a full Estate Law service and we can assist you to administer Estates, including: 

• Applications for grant of Probate;

• Applications for letter of Administration;

• Overseas assets, exemplification of grants; 

• Calling in Estates and administration such as sale of assets, tax affairs, dealing with government departments, etc'; and

• Distributions to beneficiaries.

I Am The Executor Of An Estate And Someone Has Given Me Notice That They Intend To Make A FPA. Can You Help Me?

Yes, March On Legal’s Senior Associate Trisch Partridge is also able to assist Executors to defend Family Provision Applications. Executors have strict duties and we can guide you though this complex process and ensure that you and the Estate are protected to the full extent of the law.  

Whether you just need a bit of help with Probate, or if you require full assistance with Estate litigation, Trisch can assist you to any extent required.