Contesting A Will
Some frequently asked questions...
WHY CONTEST A WILL?
There are many reasons why a person would consider contesting a Will. Some of the more common reasons are:
Before you decide whether to contest a Will, you need to know:
It’s not always about contesting the Will. It’s about the right to a copy of the Will and the right to information that will help you decide whether to contest the Will or leave things as they are.
WHAT IS A FAMILY PROVISION CLAIM?
A Family Provision Claim is when someone challenges a Will on the basis that the Willmaker didn’t make adequate provision for their proper maintenance and support in the Will.
To make a Family Provision Claim, a person needs to meet the eligibility criteria of spouse, child or dependent. There are many factors to address to see if you qualify as a spouse, child or dependent, and the definitions may be narrower or broader than you would expect.
IF A WILL IS CONTESTED, WHO PAYS?
Initially, the person challenging the Will (the Applicant) will pay their own legal costs but will typically attempt to claim their costs from the estate.
Until the claim is heard in court, the Applicant and Executors will negotiate offers to settle the claim, and the Executors will decide whether (or how much of) the Applicant’s costs should be paid from the estate.
The Executors’ costs to defend the claim are usually paid from the estate provided the costs are reasonable and properly incurred, and that there are sufficient funds in the estate.
There are no guarantees that all costs will be paid out of the estate and you may find yourself out of pocket. Relevant factors are the size of the estate and the conduct of the parties in negotiating the settlement, if negotiations fail, the judge’s decision.
HOW TO FIGHT OR DEFEND A CONTESTED WILL?
Executors should seek advice as soon as they become aware that the Will might be challenged, especially before they respond to a request for information from a potential Applicant.
Strict time limits apply, and Executors need to seek urgent legal advice about how to respond to these claims in a way that meets their obligations.