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.
Find the right legal team
Contacting the most seasoned will contesting 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
A no-win, no-fee lawyer is an excellent option for people who are concerned about lengthy, complicated contested wills cases, as many firms do ask for independent payment unless the dispute has been awarded in your favour.
With a no-win, no-fee contesting wills attorney, you don’t have to worry about paying lawyer fees unless you win your case, in which case even the legal costs come out of the award or settlement.
Your lawyer will be with you through every step of the process. They can help you:
- Determine if you are a good applicant (you need to prove you are an “eligible person”)
- File a family provision application if necessary (you need to prove you have a need for the inheritance)
- Establish your relationship with the deceased before his or her death (including if you were in any way dependent on them or if they made promises to you)
- Gather physical evidence and testimony (to prove all of the above and support your case in mediation or court)
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 will disputes attorney 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
You may contest a will on the grounds that you were unfairly cut out of the will or didn’t receive a large enough portion of the inheritance.
This is commonly achieved through the filing under family provision and mediation with other involved parties and their own lawyers to reach a settlement.
You may alternatively challenge the will, on the grounds that the testamentary capacity of the deceased was compromised due to mental health issues or that they were under the undue influence of a third party who convinced or coerced them to change their will.
In the case of contesting a will, you are merely trying to have the current will be amended to fairly apportion the estate. In the case of challenging a will, you’ll typically seek to throw the will out completely and reinstate a former will that more equitably divides the estate.
Gathering evidence may mean looking for medical reports or testimony that the testator was not of sound mind during the time when they prepared their will.
You’ll also need to be able to probe your relationship with the deceased person and your lawyer may also seek to find evidence related to any promises they may have made to you.
You’ll usually want to file a family provision application as soon as you have evidence to support it and the gathering evidence phase will continue right up to your mediation or court date. Remember, you’ll need to find evidence to support all of the following:
That you are an eligible person
A family provision claim can only be made by an ‘eligible person’, so you’ll need to have one of the following ties to the deceased person, being:
- The wife or husband of the deceased OR a spouse of the deceased
- A person who was living in a de facto relationship (hetero or same-sex) with the deceased (domestic partner)
- A “natural” or adopted child of the deceased OR a dependent grandchild of the deceased
- A person who was wholly or partly dependent on the deceased at any particular time, and was at that time a member of the deceased’s household
- A person who was living with and had a close personal relationship with the deceased at the time of the deceased person’s death
- A person who contributed to increasing the value of the deceased’s estate OR someone who was made promises about an inheritance
If you are an eligible person and you think you are entitled to make a claim on a deceased person’s estate, you must submit your application to the court within 12 months from the date of the deceased’s death.
Exceptions are made only rarely, and typically only when an eligible person was unaware of the death of the testator.
The court will consider the following before making an order:
- What relationship existed between you and the deceased person
- Your age
- Any obligations or responsibilities owed to you by the deceased person
- The location and value of the deceased’s estate
- What your financial circumstances are, including both your current and future financial needs
- Whether the testator provided maintenance, support or assistance to you and if so, when
- Whether you are already adequately financially supported by another person
- Whether you have any physical, intellectual or mental disabilities.
- If you made any contribution to increasing the value of the estate
- If you have been already provided for the applicant during the testator’s lifetime or from their estate
- Whether any other person is responsible to support you
- Your personal character
- Any other applicants’ or beneficiary claims on the estate
Once you have all the evidence collected and weighed for its value to your case, your lawyer will likely try for an early settlement.
A settlement can save you a lot in court costs and help you walk away with the inheritance you deserve with minimal fuss.
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, right after the death of your loved one.
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.
The best thing to do is to proceed as if you’ll need to take your case all the way to court as far as filing paperwork and gathering evidence goes. Your will disputes attorney may be able to leverage that evidence to negotiate an early settlement in your favor, sparing you a long, drawn out mediation or court battle.
If you’ve filed a family provision claim and can establish that the deceased should have made adequate provision for you, but failed to do so, your lawyer can enter into negotiations on your behalf and make your case as an applicant.
If you have a clear idea of the size of the estate from a reputable source, and don’t think the other parties are playing down the size of the estate, you can usually make a good settlement and avoid the animosity that comes with dragging a case through court.
Before you think about disputing a will all the way through the court system, you could try to resolve your dispute through mediation. Mediation is voluntary and is an effective way of resolving disputes without going to court.
In family provision claim matters, the court will refer the parties to mediation to allow the parties to reach a settlement. You can save a lot of time, money and stress by trying to settle your dispute through mediation for a family provision claim.
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.
Steps to mediation include:
Establishing yourself as an eligible person
Establishing lack of adequate provision
Establishing the circumstances of your claim
Are you fighting the claim because you feel you were unfairly left out or left too small an inheritance? Your dispute lawyer will fight to show how you deserved more.
Are you fighting the claim based on promises made to you? Your attorney will strive to prove that those promises were made, were meaningful, and should be upheld as the inheritance is divided.
Are you fighting the claim based on the fact that you contributed to the value of the estate on an understanding that you would inherit? Your lawyer will focus on how you gave up part of your life and labored to grow the wealth of the estate or keep a business that was a vital part of it running.
If mediation fails, then you will appear in court. Your lawyer will present evidence and testimony to support your claim, and the court will make an award based on the facts of the case and their determinations. Keep in mind that you can still settle through mediation after you have begun court proceedings. In any case, the court will have to approve any settlement.