If you are considering challenging a Will, you need expert legal advice. That's where we can help.
The death of a family member or loved one can be a very difficult time, especially if you believe you have not been left your fair share of their estate or if you have been left out of their Will altogether.
It is important that you seek legal advice quickly if you are considering challenging a Will, as there are strict time frames governing when you can make a claim. Usually, this is within six months of the Grant of Probate.
Our experienced Wills and Estate team are here to help, providing advice on how to challenge the Will and your likelihood of success.
How we can assist challenging a Will
Legally, you can challenge the validity of a Will if:
- they didn't have the capacity to make a Will at the time they signed it
- they made the Will under the influence of others
- you are a person they had a responsibility to provide for, and you believe they haven't left you a fair share of their assets
- there are technical problems with the will. e.g. it was not signed or witnessed properly.
You can also seek the removal of an Executor or Trustee if you believe they have not executed their duties properly and seek financial compensation if you have suffered financial loss as a result of their wrongdoing.
Assessing your likelihood of success
Our experienced Wills and Estate Planning lawyers will provide expert advice on whether you have legal grounds to contest the Will and assess your likelihood of making a successful claim.
If you do not have a strong case, we will recommend you drop the idea of challenging the Will. While this means less work for us, we firmly believe that you should only proceed with what can be an expensive and complicated process if there is a good chance that your claim will be successful.
Negotiating a settlement with the Executor
When someone dies, the assets of their estate are distributed by an Executor or Administrator to their beneficiaries (after debts have been paid) in accordance with their wishes as detailed in their Will.
If you do have strong grounds for making a claim, we will then guide you through the legal processes associated with contesting a Will. The first steps are to contact the Executor and notify them of your claim. We also gather evidence to support your claim.
In most cases, our preferred approach is to settle the claim through direct negotiation with the executors, rather than going to court. We will make an offer to the executors on your behalf and work hard to negotiate a fair settlement with the estate.
Going to Court
If the matter can't be resolved through direct negotiation, then we then take the matter to Court, where the evidence will be presented and the Judge will make a decision.
Our experienced Wills and Estate Planning Partner, Shane Williams, has extensive litigation experience and a strong track record for achieving good outcomes for our clients on complex Wills and Estate matters.
1. Meet with us
We start this process by organising an initial meeting with one of the highly experienced lawyers from our Wills and Estate Planning team.
This meeting is all about gaining an understanding of your relationship to the person who has died, their Will and their estate. This will help us assess the legal grounds for making a successful claim. We will also explain the process involved in challenging a Will and discuss the risks involved.
You need to bring as many of the following items as you can to the meeting:
- a copy of the Will of the person who has died
- information you have about the assets of the estate
- documents showing your relationship to the person who died
- information about other beneficiaries.
This first meeting will cost $450 (including GST) and usually takes about an hour.
2. Prepare a cost estimate
Based on the discussions and information gathered at our first meeting and your requirements, we will then prepare a cost estimate which clearly outlines our approach to contesting the Will and explains our costs. If you agree to our cost estimate, you will need pay a portion of the estimated costs in advance.
3. Challenge the Will
Once you are happy to proceed, we will then commence the process of contesting the Will on your behalf, gathering evidence, negotiating with the Executor and, if all else fails, proceeding to Court.
We have an excellent record for successfully challenging Wills and achieving fair settlements for our clients. That is why our clients choose us for this important work.