What you need to know when challenging a will in Australia
Understanding the fundamentals of challenging a will in Australia can be difficult. The lawyers at CWPL specialise in estate litigation and are here to help you if you decide that challenging a will is the right course of action for you. Below we have compiled some basic information to help you understand the process.
Negotiating for an Inheritance or Increased Inheritance
When a person dies, their affairs go into the hands of the Executor appointed in the Will, or an Administrator if they had no Will. In this web site we refer to the claim being made against the Estate of the deceased. A deceased person who has written a Will is referred to as a Testator.
The Executor/Administrator is appointed to wind up the affairs of the deceased. So, if you are making a claim for an Inheritance or Increased Inheritance (a Will Dispute), we would negotiate with the Executor/Administrator or their lawyers on your behalf. We do not usually negotiate directly with the beneficiaries named in the Will.
If you have been left out of a Will or Inheritance altogether, or are not entitled to take under an Intestacy, in this site we call that type of claim a claim for an Inheritance. If you have been provided for in the Will or if you get a share in an intestacy, but you consider that the amount provided is insufficient, in this site we call that claim a claim for an Increased Inheritance.
When we claim against the assets of the deceased we are making a claim against the assets in the Estate, that remain after all debts are paid.
If assets have been given away before the deceased died, or if the assets are in trusts or superannuation, the assets in the trust or superannuation are not normally able to be claimed through a Will Dispute in most States.
Wherever possible we try to bring them into the claim by using our expert knowledge of the different State laws.
“Claim your entitlement. We offer a preliminary assessment, without obligation to you, and a No Success, No Fee* Plan if we proceed.”
Sometimes a claim for an Inheritance or Increased Inheritance can be paid out by the Estate without the need to go to court. Often as a result of negotiations and a Mediation, conducted by us as your lawyers, a settlement can be reached without court proceedings. We pride ourselves on taking the quickest, most economical action for you, depending upon the facts of the case.
Most estate claims seem to settle without going to court
In our years of experience dealing with Inheritance related cases, we have found that a lawyer will usually have to commence legal action before the Estate will recognise the claim.
However, most Inheritance Claims we have handled seem to have settled by written agreement between the parties, without any court hearing being necessary. These “Settlements” usually occur in an informal conference which is conducted by the lawyers before a court hearing is held. This is called a “Mediation”.
Why you need preliminary legal advice on the merits of your claim
You cannot just challenge anybody’s Will. You must be able to:
- Know in which State you must commence your claim. This is called the Claim State. Ask CWPL which State’s laws apply to your case.
- Show that you fall into a particular category of person who is eligible to claim. You must have standing to challenge a will.
- Establish that the deceased had an obligation to leave something to you, or an obligation to leave more to you than he actually left you.
- Establish that the deceased failed to comply with this obligation.
- Prove your relationship with the deceased.
- Show that your financial resources and your needs are such that it is proper that the Court should order the Estate to make an payment in your favour.
CWPL, can help you decide if it is wise to make a claim, whether you are disputing a will, contesting a will or making an inheritance claim. If you do not proceed, that is your choice, and then this Initial Review will be free.
If we tell you that we cannot help you with your inheritance claim or will dispute, it will cost you nothing.
If we can help you, and we agree to act under our No Success, No Fee* Plan, we will only charge you if we are able to recover our fees from the Estate.
Do not be put off if there is a clause in the will that tries to penalise you if you challenge a will: these clauses are often treated by the court as having no effect on your rights.
In which State should you commence your claim?
Your claim is brought in the Claim State and usually this is the State or Territory where the deceased person lived and had their assets. Different rules apply in each State and Territory, and different time limits apply.
Contact CWPL to find out which Claim State applies, whether you qualify to challenge, and which time limits apply to your claim.
We can make your claim in any state:
Contact CWPL to find out more about challenging a will.
You will be under no obligation, and if you do not proceed with your Will Dispute our Initial Review will be free.