What are the pros and cons of going to court?

Published 29 Jun 2017

Contesting a will in NSW proceeds through several stages before a case ever reaches the courtroom. In our experience, less than 10 per cent of clients see their claim go before a judge.

Court hearings are only necessary when the relevant parties are unable to reach a compromise during the settlement and mediation phases. If an agreement isn't possible, both sides may eventually need to argue their case in front of a judge.

But what are the advantages and disadvantages of choosing this approach?

Advantages

Full disclosure: The executor is under no obligation to release all the information regarding the deceased's assets before the mediation stage. Even then, you may not be satisfied you have access to the full facts. A hearing enables you to challenge in court any areas with which you are unhappy.

An impartial decision: Judges are there to provide a balanced decision based on the evidence presented to them. If you feel you have been wronged, a court hearing can provide peace of mind that you received a fair judgement.

Higher settlement: Around three-quarters of will contestations are successful, according to a study compiled by the University of Queensland (UQ) and other academic institutions. You therefore have a solid chance of receiving a much higher settlement when pursuing an inheritance dispute, particularly if you are an eligible claimant and were left nothing in the will.

Disadvantages

Higher costs: Proceeding to a court hearing incurs more legal fees for both parties in the dispute, which may ultimately come out of the estate. This reduces the assets available for distribution among existing beneficiaries and successful claimants.

Stress and family tension: Contesting a will can cause tension between relatives of the deceased at an already traumatic time. You should consider the wider impact of taking your case to a hearing, as well as the stress of having to provide evidence and discuss personal matters in court.

A lower settlement: Not all will contestations go in the plaintiff's favour, and you may find the judge rules for the executor. This could leave you with a smaller share of the estate than you may have originally been offered - or no settlement at all. Taking your case to court is always a risk, whereas agreeing a settlement in advance typically ensures you receive something.

Would you like to discuss contesting a will? Please contact us at Gerard Malouf & Partners Will Dispute Lawyers to receive a free consultation on the advantages and disadvantages of your claim.

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