What are the necessary steps for contesting a will?

Published 04 Feb 2015

Author: David Cossalter

Contesting a will can be a long and complex process, particularly if the parties involved are unable to come to an agreement that is to everyone's satisfaction.

In these situations, an inheritance dispute is likely to end up in the courts, where a judge will make the final decision on how an estate is distributed.

However, there are a number of necessary steps that you should take before a case reaches the courts. Here are four stages of the claims process that usually occur first.

1. Find the right legal team

Contacting the most seasoned contesting wills lawyers available in your area is crucial to having the best chance of success during an inheritance dispute.

There are several factors to consider when picking the right legal representation, including:

  • Success rate
  • Level of expertise
  • Experience
  • Cost

A no-win, no-fees lawyer is an excellent option for people who are concerned about lengthy, complicated cases, as the firm does ask for payment unless the dispute has been awarded in your favour.

2. Gather evidence

With any challenge to a will, it is important to gather all the information and facts that support your claim. This means finding evidence that reflects the legal criteria upon which the courts may rule.

An experienced legal team can help with this process, as they will have argued numerous similar cases and know the most important areas on which to focus.

To prepare the strongest case, a number of facts are required, such as:

  • A summary of your relationship with the deceased
  • A summary of your assets and the deceased's assets
  • Any issues relating to testamentary capacity
  • A copy of the will, if available
  • Reasons why you believed you were not adequately provided for
3. Early settlement

Once you have prepared evidence, you can enter negotiations for an early settlement.

The benefits of compromising include saving on legal fees and preventing a case from being drawn out unnecessarily. You can also avoid family disruptions at what is already a stressful time.

However, there are downsides to settlements. For example, the other side does not have to fully disclose their financial position and there is a chance they will not honestly admit the true value of the deceased's estate.

4. Mediation

Mediation is the final step before an inheritance dispute goes to court. This is a structured negotiation process overseen by a mediator who helps both sides come to a mutually beneficial agreement.

Importantly, the executor of the will must provide an accurate list of the deceased's assets and their value. 

By hiring the right legal team and gathering sufficient evidence to support your claim, you have a much better chance of concluding the mediation process in a manner that satisfies everyone involved.

  • NSW Offices
  • North Parramatta
  • Sydney
  • Penrith
  • Ryde
  • Blacktown
  • Liverpool
  • Chatswood
  • Campbelltown
  • Erina
  • Newcastle
  • Wollongong
  • Ballina
  • Tamworth
  • Wagga Wagga
  • Miranda
  • Rockdale
  • Baulkham Hills
  • Bondi Junction
  • Mudgee
  • Tweed Heads
  • VIC Offices
  • Melbourne
  • QLD Offices
  • Brisbane
  • Bundall
  • ACT Offices
  • Canberra City