Frequently asked questions about money in contesting wills cases

Published 14 Jan 2014

When a family member feels they were inappropriately left out of a will, New South Wales legislation permits them to file a family provision claim that ensures they receive the share of the estate they feel they are entitled to.

However, before going about the contesting wills process, many plaintiffs have several questions regarding the amount of money available to them in the estate, and how much it will cost overall to challenge a will.

To start off, it’s good to understand who will pay the fees that go along with contesting a will. Most of the time, this will depend on the outcome of the case. A successful argument may entitle the plaintiff to an “order of costs”. In this event, the defendant who lost would be responsible for paying the necessary fees.

This does not guarantee that the losing party will cover all costs related to the entire process, however.

You may want to be on the lookout for no-win, no-fee lawyers, who will only collect if the outcome is favourable to their clients. This ensures the lawyer is working completely on behalf of the family member.

Potential compensation amounts

The amount that a plaintiff can receive in a contesting wills case is highly variable, depending on the size of the estate, the family circumstances, the mental capacity of the testator and several other factors.

In the end, the presiding judge will determine the amount that will be awarded to you after reviewing all of the factors. This means that the court found the will to be invalid, and from that point forward, the document cannot be treated as it was before the case.

The estate will be redistributed in accordance with the revised will. In the event that a person died “intestate”, or without any will, it will also be up to the court to decide how the assets of the deceased will be distributed.

Another common question is whether someone can contest a will after probate has been granted. Although it is much simpler to file a family provision claim before this period, it is still possible to contest the will after a grant of probate.

These are just a few of the many questions most people have when it comes to contesting wills. To learn more, get in touch with contesting wills lawyers.

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