Do I have to appear at court when contesting a will?

Published 28 Nov 2017

Contesting a will is rarely an easy decision. People are often hesitant to pursue an inheritance dispute following the loss of a loved one, particularly as it can cause tensions between surviving relatives.

Another fear among claimants is the prospect of appearing in court. Once a matter goes before a judge, the results typically become public record, which means anyone can visit the NSW Supreme Court website and read the details.

Sensitive information that people are reluctant to make public is usually revealed during the course of a claim. Other individuals may simply find the idea of giving testimony in open court stressful or frightening.

However, court hearings aren't the only outcome when contesting a will. Here are the other options available if you are considering an inheritance dispute.

Early settlements and mediation

The first step after informing a contesting wills lawyer of your intent to claim will be the settlements process. If the parties come to an agreement, this can save considerable time and money, as well as ensuring the details of the case are kept under wraps.

A common disadvantage of an early settlement is that the executor of the deceased's estate has no obligation to disclose the true value of the assets available for distribution. You will essentially be negotiating in the dark and could receive far less than you would if you pursued a court hearing.

The next phase is mediation - a structured negotiation framework where you are entitled to see a list of assets the deceased held prior to their death. This transparency puts your legal team in a much stronger position to agree a better settlement, although protracted mediation will incur fees.

A court hearing

The majority of cases are settled early or through mediation - we estimate that fewer than 10 per cent of our cases fully play out in court.

Nevertheless, attending court is sometimes the only option if you are unable to come to an agreement with the deceased's executors.

You will have to provide a written affidavit, confirmed by an oath or affirmation to its veracity for a court hearing. There is also a good chance you must provide spoken testimony in court, giving the defence an opportunity to cross-examine you.

While this can be a nerve-racking experience, Gerard Malouf & Partners Will Dispute Lawyers would be with you every step of the way. We have decades of experience preparing our clients for court hearings, giving you full confidence to contest a will in front of a judge.

Please contact us today to learn more.

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