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Overview

Will dispute lawyers in Australia

Arguably, there’s no legal matter more sensitive than those surrounding the last will and testament of a deceased family member. Unfortunately, estate litigation can be unavoidable in certain circumstances. If you are legally entitled to start a will dispute and contest the written wishes of the deceased relative, it’s imperative that you do so according to each local succession and family provision laws.

A will dispute lawyer is a family lawyer who specialises in mediation and litigation of estate disputes. Will dispute lawyers can help an eligible person wishing to contest or challenge the deceased’s estate to understand:

  • Who can make a family provision claim.
  • The timeline for making a family provision claim.
  • The grounds for challenging or contesting a will.
  • The estate litigation procedures.
  • The potential outcomes of a will dispute.

A will dispute that is unable to be resolved in mediation must be litigated in court and the court proceedings are set forth by the state or territory’s succession and executed by the family provision division under the Supreme Court. Will dispute lawyers in Australia can guide you and expertly advocate for your family provision claim in court.

Download our guide to will disputes.

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Why you need a family lawyer for a will dispute

Each state and territory has its own legislation related to making a will, probate, testator family maintenance (the amount paid from the estate to a spouse or children of the deceased) and family provision. If you are an entitled person, you may represent yourself (and you alone) in all Australian legal matters, criminal and civil.

You cannot represent anyone else (a child or another disenfranchised person) without a family lawyer. Contesting a will is a complex undertaking and you will certainly be in a better position to mount a challenge against the executor or contest a will with objectivity and expertise in the relevant laws and court proceedings for your particular region.

Gerard Malouf & Partners will dispute lawyers are here to help you.

The estate dispute process

Generally, when someone passes away, the named executor of a deceased’s estate applies for a grant of probate which is the court legally recognising a will’s validity. This process varies depending on the area and not all assets are required to receive a grant of probate. There are cases when a will is automatically revoked in entirety in the case of a marriage or partially in the case of gifts to ex-spouses. When there is an estate dispute, the eligible person is either challenging (disputing the validity of the entire will) or contesting (disagreeing with some of the terms) the will.

Who can dispute a will?

The matter of who can challenge or contest a will varies according to local rules but typically, the following parties are most likely to be deemed an eligible person:

  • Current spouses, de facto spouses (domestic partners) and same-sex partners of the deceased.
  • An ex-spouse or partner of the deceased (in some areas).
  • A “natural” or adopted child of the deceased (including ex-nuptial children).
  • Stepchildren (in some cases).
  • A grandchild who was dependent on the deceased.
  • A person who was at any point both a member of the deceased’s household and wholly or partly dependent on them.
  • A person was living with the deceased person at the time of their death and had a close personal relationship with them.
  • A person who contributed to the value of the deceased’s estate.
  • A person who was given promises about an inheritance from the deceased before their death.

Grounds for disputing a will

Although the personal circumstances vary from case to case, there are general grounds for disputing a will:

  • Challenging the will’s validity based on the testamentary capacity of the testator to make or rewrite a will.
  • Contesting that the estate has a moral duty to provide for them but doesn’t make adequate provisions or leaves them out completely.
 

Other possible grounds for filing a family provision claim include:

  • A complication in the distribution of the deceased estate’s assets.
  • Mistakes made by the executor that negatively impacted you.
  • Undue influence of a beneficiary resulting in disenfranchising you and others.

When to file a family provision claim

The statute of limitations for disputing a will varies by location of the estate.

Western Australia: Six months after probate. Late applications are reviewed by the court according to the Family Provision Act 1972.

Victoria: Six months from the date of probate granted. A late application must be approved by the court according to the Administration and Probate Act 1958.

Tasmania: Three months to lodge a claim with the court after probate under Testator’s Family Maintenance Act 1912 (TAS).

South Australia: After probate is granted claims may be filed within six months according to Inheritance (Family Provision) Act 1972. In certain cases, the court will allow you to join proceedings already underway.

Queensland: Six months from the date of death to notify the executor of the claim and up to three months to lodge the claim with the court thereafter. Altogether, you have nine months from the date of death to file a claim according to the Succession Act 1981.

Northern Territory: 12 months from probate with the possibility of later special circumstances claim under the Family Provision Act 1970.

New South Wales: 12 months from the date of death to file according to the Succession Act 2006.

Australian Capital Territory: 12 months from the date of death to lodge a claim with the courts under the Family Provision Act 1969.

A family law lawyer can assist you in a will dispute after the statute of limitations, should you need it. However, it’s crucial that you endeavour to adhere to the timelines set out by local laws because if the estate has been dispersed in some cases you forfeit your lost inheritance.

Steps to disputing a will in Australia

The process for contesting a will varies according to the local laws and a will dispute lawyer has the experience to help you navigate this process. Here are some general steps for disputing a will that you should know.

Your family law lawyer will seek to stop probate proceedings. Once probate is granted the executor can distribute the assets of the will. They may also seek to bring the notional estate (assets not included in the will and may have directed beneficiaries like a superannuation fund) into the claim. Please review the section above about when to file a family provision claim to ensure that you do not forfeit your inheritance because it has already been distributed.

When contesting a will, the named parties and eligible persons of the deceased’s estate meet to negotiate the terms. If an adequate provision is reached then the executor will distribute or redistribute the assets. If one isn’t reached, court proceedings will commence including a summons and an affidavit. Negotiations outside of court proceedings can resolve in six months or less. However, cases that go to court require two years or more. The legal cost following the final verdict of the contesting will is determined by the judge at the end of the proceedings.

If you challenge the testamentary capacity of the testator or dispute or claim the person with power of attorney exerted undue influence to change the will, the entire will has to be thrown out as legally invalid. In this case, probate has been granted and distributions may have been made before your family provision claim. The estate litigation is involved and requires a fair amount of investigation and expert evidence to prove.

In either situation, you need to be prepared to provide your will dispute lawyer with any documentation supporting your claim, your financial paperwork and proof of unmet needs. Most importantly, this is an incredibly emotional legal matter that requires professional legal advice.

Contact Gerard Malouf & Partners for a free consultation on your legal rights to contest a will.

Reaching dispute resolution

In Australia, you cannot bring a will dispute without evidence in support of your claims such as testamentary capacity, inadequate provision, undue influence or executor misconduct. By engaging a family lawyer with specialised knowledge of local Succession Act and Family Provision laws, you have the best chance of a successful outcome for your claim.

The court assesses family provision claims on a case-by-case basis. An eligible person contesting a will is not guaranteed a provision from the deceased’s estate. The court looks at several considerations to determine your potential award:

  • Evidence invalidating a will.
  • The moral duty of the testator is to provide for you in their will.
  • Your relationship with the deceased.
  • Effect an award may have on other beneficiaries.
  • Your physical, mental and intellectual disability level and that of the other beneficiaries.
  • Any financial or non-financial support you contributed to the testator.
  • Your financial need.
 

Ultimately, your award is determined by the strength of your case and the final value of the estate.

Gerard Malouf & Partners

Gerard Malouf & Partners will dispute lawyers

Estate litigation can be costly, especially if other beneficiaries join with the executor to refute your family provision claim. Our will dispute lawyers offer their family law expertise on a no-win, no fee basis. If you unexpectedly lose your claim, we waive our fee.

We have 25 offices across the country. With our estate and family lawyers on your team, you will receive compassionate, expert legal advice. Make a no-obligation enquiry today.

Free Resources
Download our free guide to will dispute claims

Download your guide today for free and make sure that you are aware of the facts and what you need to know from your will dispute lawyer.

Contesting Wills

Contact us for no-obligation, legal advice about your will dispute claim.
Free Resources
Our guide to will disputes

Download your guide today for free and make sure that you are aware of the facts and information you need to make a will dispute claim.

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Our Difficult Case Policy

At Gerard Malouf & Partners we have introduced a policy that if any case appears to be overly difficult or unlikely to obtain a good result for the client our lawyers must bring it to the attention of the management team via a detailed pro forms explanation early and then our management team will take all steps possible to ensure it is successful and that we obtain the maximum result for the client.

This is unlike other law firms who often run compensation claims in a mechanical way. At Gerard Malouf & Partners, our lawyers handle each claim thoroughly and comprehensively prepare it in every aspect.

This is more tedious, more complex and costlier for our firm in some ways but the best result will be achieved every time for our clients seeking accident injury compensation service. It is our professional obligation to strive not just for some justice but for the maximum achievable. This is our core philosophy and what differentiates us from other law firms.

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Meet the Contesting Wills team

Meet some of the diverse and dynamic compensation lawyers that support our clients with their Will Dispute claims.

David Cossalter
Managing Partner
Richele Nelsen
Senior Associate
Garbis Kolokossian
Partner

We're here to help your will dispute claim

Call us now on 1800 004 878 to book a free appointment with one of our compensation experts, or make an enquiry online now.

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