Many people ask what is involved in making a claim against an Estate when contesting a Will. So I thought I would prepare a guide for those people wishing to “challenge a Will”, “contest a Will” or “dispute a Will” which are common phrases I often hear.
People who on the death of a loved one or perhaps good friend have been left out of the Will and/or adequate provision has not been made for them often ask me what’s the process so, I thought I would prepare a rough guide for review of any person who may be interested.
After establishing that you are one of the various classes of people who may contest a Will (and I refer you to my FAQs in that regard but is most usually either a surviving spouse/de facto or a child of the deceased) a short document called a “Summons” is drafted by me is filed in Court. At that point, no sum of money is “claimed”. There is a filing fee payable on that of about $1,000 which, subject to your circumstances, I can help you with until the end of the claim.
Why you should wait for grant of Probate
It is not necessary to wait until a Grant of Probate has been made and in fact, in many cases, a Grant of Probate may not be required before filing the Summons. If that is the case, then the Summons contesting the Will would name as Defendants to the Summons the beneficiaries in the Will or if there is no Will, those persons entitled to receive a share of the Estate under the Intestacy Laws in New South Wales.
The Court Rules require that at the time the Summons is filed, there is also a statement (called an Affidavit) by the Claimant setting out various matters which the Court needs to consider in determining a claim by a person contesting a Will. These matters include:
a. The size of the Estate;
b. Details of the relationship between the Deceased Person and the Claimant;
c. The Claimant’s personal and financial situation including
• statements of all assets and liabilities of themselves and their spouse/de facto and
• any special needs in terms of their own dependent children and responsibility for supporting other persons.
• Details of any contributions to the Deceased Person’s Estate (for example, carrying out work, adding extensions, paying off mortgages, etc.)
and are very important in contesting a will.
If the 12 months’ time limit from date of death to contest a Will is about to expire and it is not possible to properly complete the Affidavit before filing the Summons, it is permissible to file the Summons in those circumstances but all efforts should be made to complete and file the Affidavit as soon as possible.
When the Summons is filed, a date for the parties to appear before the Court is allocated in the “Family Provision List” which is a List supervised by the Family Provision Judge Hallen, J who deals with most contests over Wills.
If the argument is that the Deceased did not have the necessary mental ability (called “testamentary capacity”) to make that Will or there is some other reason for seeking to have the Will itself set aside then those matters are normally dealt with in the Probate List ( but this which will be the subject of another note by me).
About four to six weeks after filing the Summons, the parties’ lawyers will find themselves before the Family Provision Judge for a brief court appearance . Directions will be made as to the filing of Affidavits by the Executor of the Estate (or the Defendant if no Executor has been appointed) as to
• the size of the Estate,
• what assets are in the Estate being contested,
• details of any liabilities,
• the names of all beneficiaries, and,
• if the financial position and needs of those individual beneficiaries are to be raised in defence to the claim, details of those financial circumstances.
Usually after the first Directions state, the Family Provision Judge will order the matter to be returned for further directions in about a month or so.
On the next directions hearing, the Family Provision Judge, on being advised that all his prior requirements have been met, will set the matter down for either a private mediation or Court-appointed mediation. If the Estate is of a higher value, the private mediation is usually ordered which will involve in incurring the cost of a private mediator (perhaps a barrister or solicitor who acts as mediator and is experienced in matters such as this).
A Court-appointed mediator is Registrar of the Court and there is no fee payable for the use of the Court offices nor the Registrar acting as mediator.
If a private mediator is ordered when contesting a will this will incur additional cost between $3,000 and $4,000 for the mediator’s fee and may be $500 for the venue.
The role of the mediator is often misunderstood by the parties to the claim. A mediator is there to attempt to bring the parties to agreement, i.e. an out-of-Court settlement. It is not the role of the mediator when somebody is challenging a Will to either advise as to the likely outcome if the matter goes to Court or to try and convince one party or the other to accept a certain settlement.
The mediator will normally thank the parties for attending, advise as to the likely delays and costs before a Judge will impose a decision on the parties and the preference in matters where Wills are being contested for the parties to achieve a resolution as between themselves. At a mediation I will advise you client the amount of legal costs that have been incurred up to that point. Usually legal costs up to the conclusion of the mediation (including 50% contribution for the costs of the proper mediator if applicable) could be between $25,000 and $35,000 which will include barrister’s fees for Court appearances and attendance at the mediation.
Depending on whether assets need to be sold, etc. if a settlement is achieved, payment is usually made to you within 28 days of orders being made by the Family Provision Judge.
Why you should settle a will dispute
When contesting a Will, it is important to realise that settlement increases the chances of maintaining any family relationships.
Sometimes when a claim is made contesting a Will, the Estate may require a release to be provided by the Claimant where the Claimant promises not to make any further claims against the Estate in the future. If that is required, then the Family Provision Judge will review the paperwork in his Chambers and if he feels that settlement of the claim is in the Claimant’s interest, then he will approve the settlement.
Please note that up to this time, there is no requirement for either any of the parties including the person challenging the Will to appear in Court.
They must appear at any mediation with their solicitors and barristers to provide instructions as to the settlement unless in exceptional circumstances such as illness or being unable to travel for the mediation venue which is usually in Sydney. I had a case where a Claimant was challenging his late father’s Will attended a mediation by Skype so he was able to hear the mediator and be party to the discussions with me and his barrister on the day.
If the matter cannot be settled at the mediation, then a hearing date will be allocated usually within 12 months from the date the original Summons was filed.
An updating Affidavit as to any change in financial position of the Claimant, and the beneficiaries may need to be provided, subpoenas could be issued seeking to verify financial information such as tax returns, Centrelink payments and so on, particularly by the person contesting the Will.
It is important to note that any failure to fully and accurately disclose your financial position and that of your spouse/partner can be fatal to a claim.
Will dispute success
If you are successful in contesting the Will, the Estate will usually be ordered to pay your legal costs which on balance would probably amount to between 65% to 75% of those costs leaving a gap which would be payable by you from the amount of the award from the Estate. The size of the gap will depend on the hourly rate charged by your solicitor but could be $5,000-$10,000.
Unsuccessful Claimants are usually ordered to pay the Estate’s legal costs which after a one-day hearing could be between $60,000 to $70,000. This is very important for people wishing to contest a Will to consider as even if their solicitor is on a no-win, no-fee basis, they will not be protected from any adverse cost or whether they had been ordered to pay legal costs to the estate.
I hope this short narrative has been of some assistance to you in considering whether you wish to contest a will
I urge you to contact me for a free chat before you make any decision about challenging a will .
Will Dispute Lawyer