Contesting a Will (Family Provision Claims)
Many Wills will be contested under the family provision laws of each state and territory in Australia. If you do not think a Will is valid then you should check our page on Challenging A Will.
These laws exist because there is a presumption that where someone has a moral duty to provide for someone such as a spouse or a child and they fail to discharge that duty, the state has a legitimate basis to step in.
Normally, these proceedings focus on the fact that the person contesting the Will has not received enough and should have received more. They may be seeking a financial settlement or the right to live in a property.
Generally, the question turns on the need of the plaintiff.
If you have any questions about contesting a Will please contact us.
Contesting a Will Generally
Someone died without a Will. Can I still contest the distribution of the estate?
Yes – this section applies equally to estates where a person died without a Will.
What are the grounds for contesting a Will?
You can contest a Will on the basis that you have not been adequately provided for your proper maintenance, education and advancement in life. The exact wording varies from state to state.
This will vary from client to client but, generally speaking, a spouse of some standing can expect a roof over their head, a fund against contingencies, and an income stream. On the other hand, an adult child can generally expect a lump sum by way of a start in life.
Who can contest a Will?
In all Australian jurisdictions, you need to have some relationship with the deceased. Generally, this will be a spouse or a child.
However, in some cases more extended family members or friends may be able to contest a Will if they can show some kind of dependence on the deceased. This varies considerably from state to state.
How do I get a copy of the Will?
If a person has died, then all Australian states and territories put an obligation to give a copy of a Will from any person who has a copy provided the person making the request meets certain criteria.
The power to request a copy extends not just to current Wills, but also extends to draft copies of Wills or copies of revoked Wills.
You may need to pay some minor fees to the person providing you with a copy.
Will the estate pay my costs?
Family provision claims are generally settled with the plaintiff’s costs being taken into account.
If the matter goes to trial and you are successful then you can expect that the estate will meet a significant proportion of your costs.
Can I contest a Will if I don’t live in the same state as the deceased?
Yes. We regularly act for clients in this situation.
Can my claim be made against jointly-owned property or superannuation?
With the exception of New South Wales, you cannot contest a Will to claim jointly owned property or superannuation unless there is some way of causing those assets to form part of the estate.
Some firms offer no win, no fee. What does that mean?
A ‘no win, no fee’ agreement is known as a contingent costs agreement and the devil is in the detail.
The terms of these agreements will generally provide that you only pay if you are successful. However, you tend to lose some control about how your claim is managed, you still need to pay any barrister’s costs and any filing fee, and ‘successful’ may be defined any settlement in your favour (even if it is small).
We approach this differently. Where clients struggle to meet the upfront costs of litigation but have a good claim, we are willing to consider entering into a deferred costs agreement which provides that you will only need to pay when the matter is concluded.
We are specialists in estate litigation, so you can be confident that with our assistance you will get the best possible outcome.