Wills & Estates FAQs

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Wills and Estates is a complex area of the Law. It’s also an area that people often find difficult to talk about, and don’t know where to turn to for advice.

If someone close to you has recently passed away and you have found yourself left out of the will, it can be difficult to know what to do next. In this emotional time, contesting the will may be the last thing on your mind, but it’s important to be aware that there are strict time limits for contesting a will in Victoria. If you decide to make a claim on an estate, you have to act quickly.

The first step in deciding whether or not to contest a will, is to research the process and talk to a lawyer about your eligibility and likelihood of success. The team at Hentys Lawyers is here to answer any questions that you have and we provide free initial advice, with no-obligation to proceed with your case.

If you want to find out more before getting in touch with us, the FAQs below are an excellent starting point.

Making a Will FAQs

Who Can Make a Will?
Should I Make a Will?
How to Write a Valid, Legally Enforceable Will
What Is Required For A Will To Be ‘Valid’?
Are Electronic Wills Considered Legally Valid?
Can I Change My Will At Any Point?
If I Change My Will, Do I Have To Draft A Completely New One?
What Effect Does Separation Have On My Will?
Is It True That Marriage/Divorce Will Revoke My Will?
What is the Effect of a “No-Contest“ Clause?
Who Can Make a Will?

In Victoria, any person over the age of 18 who has the mental capacity to understand what they are doing may make a Will. In some circumstances, the Court may also approve a Will made by a minor.

People who are mentally incapable of creating a Will may also still have a Will made, however a Will made by a mentally incapable person may require approval by the Court.

Should I Make a Will?

A Will is a legal document that dictates how your Estate (i.e. your assets, savings, property, etc.) is to be divided once you pass away. While there are legislative provisions in place that provide a rough guide as to how your Estate should be divided in the event that you do not have a Will, these legislative provisions tend to favour the immediate family of the Deceased and do not provide for close non-relatives.

By drafting a Will, you are able to specify exactly who gets what.  For example you may decide that certain family members have a greater need than others, or you may decide that certain non-relatives ought to have a stake in your Estate. Drafting your Will ensures that your desires are properly reflected and carried out after you pass away.

How to Write a Valid, Legally Enforceable Will

When creating your will, there are various steps that can be taken to avoid any ambiguity and lower the chance of a will contest.

  • Look at examples of valid wills online, taking note of their structure and common features. This will give you valuable insights into what your final will and testament ought to look like and the type of language that will need to be used.
  • Make a comprehensive list of your assets, including physical and intangible belongings, as well as those that hold particular sentimental value.
  • Determine the individuals who you would like your estate to be distributed among. Whether they’re relatives, close friends, charities or the like, it’s important to carefully consider whom to appoint as the beneficiaries of your estate.
  • Decide whether there’s anyone you want to exclude from your inheritance. Clearly and carefully explaining why you’ve made the decision not to include a particular individual can help ensure your testamentary wishes remain intact after your passing.
  • Distribute your assets between identified beneficiaries, making sure to include detailed descriptions that accurately describe each component of your estate. It’s also important that you include the exact percentage of your estate you would like each individual to receive, as well as his or her name and relationship to you.
  • Add any additional instructions or conditions regarding how your estate ought to be distributed and managed. For instance, this can include who you would like to become the legal guardian/s of your children after your passing. In addition to this, you may nominate an executor to ensure that the terms of your will are followed.
  • Keep your will up-to-date. After writing their will, it’s not uncommon for a testator’s situation to change. By making any necessary changes to their will, individuals can ensure that their final will and testament accurately reflects their current wishes and accounts for any major life events.
What Is Required For A Will To Be ‘Valid’?

In Victoria, there are a number of formal requirements that must be satisfied before a Will can be said to be ‘valid’.  In order to reduce the possibility of challenges to your Estate and ensure that the distribution of your Estate is done as smoothly as possible, having a valid will is essential.

The formal requirements for a valid will are:

  • That the Will is signed in front of two or more witnesses, who also sign the Will.
  • The Will maker must not be suffering from a disorder of the mind or sane delusion.
  • The Will is in writing.
Are Electronic Wills Considered Legally Valid?

Fundamentally, electronic wills comprise the same elements as a standard document outlining an individual’s testamentary wishes. However, they are written using a digital medium, such as a computer or mobile.

Electronic wills are typically created using a word-processing program, but this isn’t always the case. In some instances, the testator will leave a video in which they express how their estate ought to be distributed. Whether or not the Court accept wills of this nature as authentic, valid and legally enforceable is dependent of the unique circumstances and context of each individual case.

It’s not uncommon for electronic wills to stray from the requirements of a valid will, as outlined in Victorian legislation. However, Section 7 of The Wills Act 1997 (Vic) stipulates that certain discrepancies can be excused, so long as:

  • There is a “document” present;
  • It can be established that the deceased intended for this “document” to act as their final will and testament.

There are three core categories under which electronic wills can be classified:

  • Offline Electronic Wills: this is when a testator writes their will using a digital word-processing program, either typing their testamentary wishes or using a stylus. This document is then saved to a hard drive or the like, rather than being posted online.
  • Online Electronic Wills: this is when a testator expresses their testamentary wishes on an electronic program that doesn’t serve the primary purpose of storing wills. For instance, an individual may inform another of how they’d like their estate to be administered over Facebook Messenger.
  • Qualified Custodian Electronic Wills: this is when a testator uses a third party, for-profit entity to create, validate and securely store their final will and testament. Typically, the testator will need to fill out a form online outlining their wishes. Once the document has been completed by the entity, the will must be signed, authenticating its contents. If required, companies may even provide access to witnesses over a webcam. The will is then stored safely on the entity’s online server.
Can I Change My Will At Any Point?

Wills are by no means set in stone. In fact, a prudent Will maker will often return to his/her Will after a significant change in his/her circumstances. Such circumstances may include:

  • The purchase or sale of an asset or investment.
  • The purchase or sale of a business.
  • An involvement or devolvement in a trust.
  • The birth of new children/grandchildren.
  • The death of any relative/intended beneficiary.
  • A marriage, divorce or separation.
If I Change My Will, Do I Have To Draft A Completely New One?

Not at all. Most changes to Wills are done by adding amendments or ‘codicils’. A codicil is a simple additional provision to your Will and is a relatively inexpensive thing to add. Be aware, however, that where a codicil contradicts any parts of your Will or causes confusion it may have the effect of invalidating your Will. If you are unsure about whether or not a codicil will have this effect, it is always best to pursue the advice of a Wills & Estates Professional.

What Effect Does Separation Have On My Will?

Assuming you have not amended your Will to reflect the separation, your Will is not automatically revoked by a separation. In many cases, although two parties had separated, the former partner will still receive the other’s property unless another Will is either made, or the old one is changed to reflect the change in relationship.

Is It True That Marriage/Divorce Will Revoke My Will?

Generally speaking, yes. When you marry or remarry it has the effect of automatically cancelling your Will, unless your Will clearly shows that you were planning to marry when you made it.

The same is true with divorce. When you divorce a spouse, your Will treats him/her as if he/she died before you. This being said, a divorce will not automatically revoke a Will, and so it is always wise to consult a Wills & Estates Professional about your Will after a divorce.

What is the Effect of a “No-Contest“ Clause?

Sometimes people insert a clause in their Will that attempts to penalise anyone who claims an Inheritance or Increased Inheritance, or who contests or challenges the Will in any way. The “penalty” usually works by “disinheriting” the person who disputes the Will. These sorts of clauses may not be enforced by the court and so you should not be put off making such a claim just because this type of clause is found in the Will.

For more information about Making a Will, see the following articles:

Probate & Estate Administration FAQs

What Does A Grant Of Probate/Letters Of Administration Do?
How Do I Obtain A Grant of Probate or Letters of Administration?
Who Can See a Will?
What Happens If There Is No Will?
Can I Claim Assets That Have Not Been Mentioned in the Will?
What Happens if the Testator Leaves You a Gift They No Longer Own?
What Can I Do if the Testator Transferred Ownership of Certain Assets Before Their Passing?
What Happens If the Liabilities of the Estate Exceed the Estate Assets?
Is an Unsigned Will Still Valid?
How Is The Estate Divided When Someone Dies Without A Will?
Should I Appoint An Executor?
What Are The Duties Of An Executor?
Can A Beneficiary Also Be An Executor?
Must I Accept the Role of Executor?
Who Pays The Cost Of Performing A Search Where An Administrator Of An Estate Is Required To Look For Remaining Relatives?
At What Age Can a Child Legally Inherit in Victoria?
Can a Testator Leave Provision to Their Pet?
What is a Binding Death Benefit Nomination?
What is the Falsa Demonstratio Principle?
What Does A Grant Of Probate/Letters Of Administration Do?

In short, a Grant of Probate or Letters of Administration has the effect of giving the appointed Executor access to the Deceased’s bank accounts, the right to sell or transfer the Deceased’s property and collect, administer and protect the Deceased’s property.

A Grant of Probate or Letters of Administration also provides protections to the Executor and the beneficiaries of an Estate – it ensures that only they will receive the Deceased’s property.

How Do I Obtain A Grant of Probate or Letters of Administration?

When a person dies and leaves a valid Will, a Grant of Probate must be obtained before an Executor can begin the process of gathering up and distributing the Deceased’s Estate. In most cases, a Grant of Probate can be obtained from the Registrar of Probates in the Supreme Court when he/she is satisfied that the Will is valid and that you are the Executor.

If a person dies without a will, or there is a will but an Executor has not been appointed, Letters of Administration must be made to the Registrar of Probates in the Supreme Court. The process of Letters of Administration is very similar to that of a Grant of Probate.

Who Can See a Will?

The following people can have access to the Will of a deceased person:

  • Any person named in the Will
  • Any person named or referred to in any earlier Will as a beneficiary
  • Any spouse of the Will maker
  • Any de-facto spouse of the Will maker
  • Any parent, guardian or child of the Will maker
  • Any person who would be entitled to share in the estate if the Will maker had died without a Will
  • Any parent or guardian of a minor referred to in the Will
  • Any creditor or other person who has a claim against the Will maker who produces evidence of that claim

Any person can obtain a copy of the Will from the Supreme Court once a grant of probate has been obtained.

What Happens If There Is No Will?

When there is no Will left by a Deceased, certain legislative rules come into play to determine how the Estate is to be divided up. When you die without a Will, you are said to die ‘intestate’. When an individual dies intestate, the Administration and Probate Act 1958 (Vic) creates a hierarchy of inheritance. This hierarchy applies to all deceased intestates and does not take into account any of the deceased’s desires for distribution.

Can I Claim Assets That Have Not Been Mentioned in the Will?

For various reasons, the deceased’s will may not always instruct the executor on how certain assets ought to be administered. Typically, situations of this nature arise when the testator writes a valid will but fails to mention particular assets that are included in their estate. Thus, they are said to have died partially intestate.

In such cases, an eligible person who feels they failed to receive adequate provision or that the document itself is invalid can lodge a claim against the estate.

There is no guarantee that such action will be successful, so it’s suggested that individuals who believe they have a viable case speak with an experienced estate lawyer. By doing this prior to instigating an estate dispute, you can gain professional insights into whether or not your claims hold legislative merit.

Which Assets Are Commonly Left Out of a Will?

There are numerous assets that the deceased’s final will and testament may not account for, including:

  • Money;
  • Possessions;
  • Property;

Why Do Testator’s Omit Certain Assets from Mention?

There are various circumstances that may lead to certain assets of a deceased individual being excluded from mention in their final will and testament. Examples are as follows:

  • The deceased acquired the asset/s in question relatively recently and, thus, was yet to update their will to include their new belonging/s;
  • The testator was intentionally hiding wealth from their loved ones and relatives;
  • The deceased was unaware that they held sole ownership of a certain asset;
  • When creating their will, the testator simply forgot to mention a component of their estate.

What Happens When an Estate is Declared Partially Intestate?

Typically, when an individual dies partially intestate, the assets that have been accounted for in their valid will are distributed as detailed. The remaining parts of the estate that were excluded from mention are administered in accordance with Victorian intestacy laws.

What Happens if the Testator Leaves You a Gift They No Longer Own?

In some instances, a testator will leave a certain gift to beneficiaries in their will but, when their estate is being administered, it’s found that they are no longer the owner of such possession. The term ademption describes circumstances of this nature and, surprisingly, such complications during the distribution of an estate are not uncommon.

When Can Ademption Occur?

Ademption isn’t always a matter of forgetfulness, and will typically occur when:

  • After writing their will, the testator sold the asset/s in question;
  • The property in question was stolen, lost or destroyed;
  • The asset was fundamentally transformed in some way.

By mitigating against the possibility of ademption, testator’s can minimise estate administration costs and the strain on family relationships after their passing.

What Can I Do if the Testator Transferred Ownership of Certain Assets Before Their Passing?

An individuals’ personal estate encompasses all of the assets that, at their time of passing, were held solely in their name. However, a notional estate extends beyond this. For instance, a testator’s notional estate may include property they transferred ownership of prior to their passing in a bid to avoid their estate being contested by an eligible person.

Can a Notional Estate be Contested?

In Victoria, succession laws perpetuate that family provision claims against notional estates cannot be legally enforced.

This means that if the deceased transferred ownership of an asset to someone before his or her death, such decision will usually remain intact. Therefore, even if you believe that the deceased did not provide you with adequate provision, you will likely experience difficulty contesting the distribution of the assets that form their notional estate.

Because of this, if you have a claim that you feel may hold legal merit, it would be suggested that you get in touch with an estate professional. They can assist you in assessing the likelihood of your case being successful, providing you with expert guidance and advice. It is, however, important to note that you will need to lodge your claim within six months of the testator’s passing. Thus, if you’re considering pursuing a case against a notional estate, taking prompt action prompt is favourable.

What Happens If the Liabilities of the Estate Exceed the Estate Assets?

Before an estate can be administered, the executor is required to settle any outstanding formal debts the testator accrued. They do so by using the deceased’s funds and, in some cases, selling their valuable assets that form part of the estate. Thus, the executor may be responsible for selling estate property and the like in an effort to acquire adequate funds to pay the testator’s debts in full.

When Liabilities Outweigh Debts

However, the value of an estate isn’t always equivalent to the liabilities that must be accounted for. An estate is deemed insolvent when the value of the deceased’s’ assets are outweighed by their remaining liabilities. In such cases, potential beneficiaries will not receive any provision from the estate.

Regardless of whether or not an estate is insolvent, the executor will need to apply for a grant of probate. This ensures that all involved assets are distributed accordingly and in accordance with relevant legislation.

Circumstances of this nature are typically resolved in one of the following ways:

  • Any Creditors who are yet to be reimbursed for the debt they are owed can take legal possession of the asset/s in question, or
  • The estate is declared bankrupt.

How is an Estate Declared Bankrupt?

Creditors who are owed funds from the estate can petition for a bankruptcy trustee to finalise the estate’s administration. However, it is important to be aware that only certain creditors are eligible to nominate a registered, independent trustee to manage the estate. To action an estate’s declaration as bankrupt and, thus, be able to appoint a trustee, a creditor or group of creditors must be owed at least $5000.

Alternatively, an executor can voluntarily apply to the Court to have the deceased’s estate declared as legally bankrupt. In order to do so, they must present relevant documentation. This includes a statement of the testator’s outstanding affairs and a statement detailing how estate assets have been managed up until the application to declare bankruptcy was lodged.

The Role of Trustees

The trustee who is appointed is responsible for the following:

  1. Identifying and distributing all divisible property of the insolvent estate;
  2. Recovering any undervalued transactions. Such instances arise when, before bankruptcy is declared, the estate’s assets are sold at a favourably low price or given away;
  3. Distributing recovered funds to creditors to whom the estate is in debt;
  4. Keeping involved creditors and regulators updated as required.
Is an Unsigned Will Still Valid?

For a will to be considered valid and legally enforceable, it typically needs to comply with the following specifications, as detailed in the Wills Act 1997:

  • The will must be in writing and signed by the testator;
  • When signing their will, the testator must intend to and be fully aware of the implications that come with validating their formal document;
  • Two witnesses must be present when the testator signs their will, both of whom are also required to sign the will;
  • The testator must be at least 18 years old.

However, in some cases, the Court will accept an unsigned will as a valid representation of the deceased’s testamentary wishes.

This is known as an informal will, which will generally be admitted if it can be established that the testator intended for the document to act as their final will.

For an unsigned document to be successfully validated by the Court, the following conditions must be satisfied:

  • There is a document, such as a video or letter;
  • This document details the testamentary wishes of the deceased;
  • When creating this document, the testator must have done so with the intention that it would represent their final will and testament.
How Is The Estate Divided When Someone Dies Without A Will?

The Administration and Probate Act 1958 (Vic) provides a clear structure of inheritance in the event that a person dies without a Will (‘intestate’). This structure is often referred to as a ‘hierarchy’. The hierarchy of inheritance for intestates is as follows:

  • If the intestate leaves behind a spouse or domestic partner, but no children, then the spouse or domestic partner receives the whole of the estate;
  • If the intestate leaves behind a spouse or domestic partner and children, the spouse or domestic partner will receive the first $100,000 and one third of the residual Estate, while the children will receive the remaining two-thirds equally;
  • If there is no spouse or domestic partner and no children, then the intestate’s parents will receive the whole of the Estate.
    • If the intestate’s parents have predeceased the intestate, then the Estate will pass to the intestate’s siblings.
    • If the intestate either has no siblings or they have also predeceased him/her, the Administrator of the intestate’s estate will attempt to trace his/her family tree and pass the Estate on in its entirety to any collateral relatives.
  • In the event that there is no surviving lineal or collateral relatives, or they cannot be found after a reasonable attempt at searching for them, the Government will receive the entire Estate.
Should I Appoint An Executor?

Appointing an Executor is crucial to the success of the distribution of your Estate. While you can certainly appoint and hire ‘professional’ Executors, many people simply opt to appoint friends or family to perform the role themselves.

An Executor deals with your Estate after you pass away, ensuring that your Estate is gathered up and is distributed to your intended beneficiaries.

What Are The Duties Of An Executor?

Executors perform a number of duties on behalf of the Deceased, and are generally appointed to be the living representative of the Deceased’s Estate. An Executor’s duties may include:

  • Attending to funeral arrangements.
  • Notifying any financial institution or other relevant organisations of the Deceased’s death.
  • Ascertaining the size of the Estate and taking control of the Deceased’s assets.
  • Identifying and tracking down (where required) beneficiaries.
  • Determining the beneficiaries’ entitlements under the Will.
  • Obtaining the Grant of Probate or Letters of Administration.
  • Resolving all of the Estate’s liabilities and disputes – this may include settling any debts left behind by the Deceased out of the Estate as well as defending or resolving any Family Provision claims that have been brought against the Estate.
  • Distributing the beneficiaries’ entitlements either by transfer of ownership or through the sale of the assets.
  • Investing funds or managing the assets of the Estate either as directed by the Estate or on behalf of the beneficiaries.
  • Keeping properties held in life trusts for beneficiaries in good repair, insured and covered for rates and taxes.
  • Acting impartially and in the best interests of all the beneficiaries.
Can A Beneficiary Also Be An Executor?

Absolutely. In fact, where a spouse or another person is named in a Will as the sole beneficiary of an Estate, it is not uncommon for that person to also be named the Executor.

It is also possible for any other person (for example a friend, lawyer or other professional) to be appointed as a beneficiary – even a trustee company!

Must I Accept the Role of Executor?

An executor is expected to carry out duties relevant to the estate and it’s administration, all the while acting in accordance with the testator’s wishes and in their best interest.

When nominated as the executor of a will, individuals are required to take on various responsibilities, which can be incredibly time-consuming. In some cases, because of the estate’s complexity, it may take years for the executor to fully complete their duties.

The duties of an executor include:

  • Locating the testator’s most recent, signed will;
  • Applying for and obtaining the grant of probate, which confirms the will’s validity;
  • Collect and protect any assets of the deceased’s prior to the estate’s administration;
  • Pay any outstanding debts that had been accrued by the testator;
  • Finalise any of the deceased’s taxation affairs;
  • Distribute the testator’s assets as per their testamentary wishes.

A nominated individual does not have the legal obligation to accept the role of executor. Thus, even if they previously agreed to accept the responsibility during discussions with the will-maker, they can still choose to decline the position.

If you intend to renounce your role as executor of a will, it is suggested that you do so before administrating any of the estate’s assets. In addition to this, individuals will typically need to resign prior to the grant of probate being awarded. This is because, once the appointed executor takes on such responsibilities, they’re often said to have assumed the role.

Who Pays The Cost Of Performing A Search Where An Administrator Of An Estate Is Required To Look For Remaining Relatives?

As with much of the administrative costs incurred by an Administrator or Executor, the vast majority of necessary expenses come out of the Estate. Where a Will is drafted, it is very common for provision to be made in the Will itself for a sum of money to be provided to the Administrator or Executor for this purpose.

At What Age Can a Child Legally Inherit in Victoria?

In Victoria, the legal age of inheritance is 18. However, in some cases, the testator will include certain specifications that prevent the beneficiary from accessing their funds or property until they reach an older age.

If the deceased left property to a minor in their will, the estate’s executor is responsible for the property until the child is of the required age.

In some instances, the child may have a guardian appointed to them, with such decision likely being expressed in the testator’s will. However, unless they are the nominated executor or trustee, the minor’s guardian will not have control over the property.

In addition to this, the testator may include technicalities that, until adequately satisfied, forbid certain beneficiaries from retrieving their inheritance. For instance, individuals may be subject to conditions such as getting married or having a child.

Can a Testator Leave Provision to Their Pet?

If an individual wants to ensure that their pet is cared for after their passing, there are numerous ways they can do this. Making provision for a pet isn’t an uncommon practice; in fact, in some cases, animals inherit millions of dollars from their owner/s. Regardless of what you intend to leave your beloved pet, doing so in a practical and legally enforceable way is crucial.

  • Appoint a beneficiary to care for your pet: such an approach involves entrusting a close friend or family member with extra provision, which is to be used to care for your pet. This solution can be relatively low-cost; however, you will need to trust that the selected individual will act in accordance with your distinct wishes.
  • Set up a trust: this method differs from the above, as you can detail certain conditions that must be met prior to the distribution of estate funds. Specifications can include how much money ought to be spent on your pet, particular treats your pet should be given, whether they need to be taken on certain trips and the like. Your trust can also outline how you would like the assets inherited by your pet to be distributed after their passing.

A trustee is an individual who is responsible for administrating assets and ensuring that all of the conditions outlined in the trust are satisfied. They are legally obliged to act with the interests of the trust in mind and, if they fail to do so, can be held accountable by the Court.

What is a Binding Death Benefit Nomination?

Superannuation is not considered as part of a testator’s estate. Thus, when an individual passes away, alternative arrangements for the distribution of their superannuation need to be arranged.

In some cases, the testator’s superannuation fund will make use of ‘death benefits’, which can be either a:

  • Binding death benefit, or a
  • Non-Binding death benefit

If the deceased wants their superannuation to be managed and administered in strict accordance with their wishes, they will create a binding death benefit nomination. Often, an individual will create a formal document of this nature if they aren’t confident that their super fund is going to be managed in the manner they would like.

When death benefits are non-binding, the deceased grants their nominated trustees the ability to exercise discretion while managing their superannuation.

For a binding death benefit nomination to be deemed valid and, thus, enforceable, it must comply with the following requirements:

  • The document was executed appropriately and in accordance with the rules outlined in the trust deed;
  • The agreement is in writing;
  • The completed document is signed and dated by the super fund holder, which is witnessed by two witnesses.
What is the Falsa Demonstratio Principle?

The falsa demonstratio principle stipulates that an incorrect description doesn’t make a testators will invalid, as long as they display clear intent.

Typically, such principle is enforced to address an obvious mistake that was made by the deceased in their will. Whether the testator made a minor typo, grammatical error or the like, if it can be concluded that they truly intended to pass the asset in question onto a particular beneficiary, such wishes will be enforced. Thus, the falsa demonstratio principle prevents the deceased’s’ true instructions for the administration of their estate from being deemed void.

For more information about Probate and Estate Administration, see the following articles:

Contesting a Will & Challenging a Will FAQs

What Are The Different Grounds for Contesting a Will?
On What Basis Can a Claim be Made Against an Estate?
Who Can Make A Family Provision Claim?
Who Can Contest a Will in Victoria?
Can a Child Contest a Parent’s Will?
Can an Ex-Wife Contest a Will?
Can I Contest the Will of my De Facto Partner?
Can I Dispute the Estate of Someone I was Financially Dependent on?
Can I Dispute the Estate of Someone I was Estranged from?
Is There a Time Limit For Filing a Will Contest?
How to Contest a Will
What is the Point in Making a Will if it Can Just be Challenged?
How to Stop a Will Being Contested
Can I Contest a Foreign Will?
What is the Meaning of Proprietary Estoppel in a Will Contest?
Can You Contest Charitable Gifts Left in a Will?
What Are The Different Grounds for Contesting a Will?

Various circumstances may motivate an eligible person to consider contesting a will. Before pursuing a claim against an estate, it is crucial to establish whether your case would hold legislative merit. By becoming familiar with the types of common claims individuals make when contesting a will, you can determine the viability of your own propositions.

  1. Contesting a Will by Making a Family Provision Claim
  2. The Deceased Lacked Testamentary Capacity
  3. The Deceased Was Under Undue Influence

 

1. Contesting a Will by Making a Family Provision Claim

Family provision claims are instigated by individuals who believe a testator failed to adequately provide for them, or who feel they were wrongly omitted from a will.

When contesting a will on such grounds, often, claimants are not saying that the document itself is invalid. Rather, an eligible person is dissatisfied with the testators intended distribution of their estate. As such, the claimant disputes the testamentary wishes of the deceased, seeking a greater share of their assets.

For a family provision claim to be successful, the claimant must show that they did not receive ‘Adequate Provision for Proper Maintenance and Support’. The unique circumstances of each case determine the amount of provision needed to satisfy such a requirement.

When deciding whether adequate provision was provided in a given situation, the Court will consider:

  • The extent to which the testator had a moral duty to provide for the claimant;
  • Whether the claimant has already received adequate provision from the estate;
  • The claimant’s ability to provide for themselves;
  • How other beneficiaries will be impacted if the claimant’s case against the estate is successful.

2. The Deceased Lacked Testamentary Capacity

When contesting a will, individuals may claim that the testator lacked testamentary capacity when writing their final wishes.

In such cases, the claimant believes that the deceased was not of sound mind, memory and understanding during the creation of their will. A claim of this nature suggests that the testator’s will does not convey their true intentions and that, because of this, it is invalid.

For an individual to be successful when pursuing a testamentary capacity claim against the estate, they must show that the deceased lacked the mental capacity to make a legally binding will. This means that, when administering the estate, the testator’s will does not need to be taken into account. Instead, their assets will be distributed in accordance with intestacy laws.

3. The Deceased Was Under Undue Influence

Contesting a will on the grounds that a testator was coerced or under undue influence challenges the legal validity of the deceased’s final wishes.

An individual may believe that a testator was persuaded or forced to include certain specificities in their will. If this is the case, a claimant can contest the deceased’s testamentary wishes by showing evidence of such wrongdoing. It needs to be established that the testator’s formal will does not accurately encompass their true wishes.

Often, cases of this nature are particularly difficult to prove. This is because the exact factors that influenced the testator’s distribution of their estate may be unclear.

On What Basis Can a Claim be Made Against an Estate?

There are two key areas that are subject to a claim against a deceased’s estate.

Challenging the validity of the Will is a common claim in Will disputes cases. These claims are against the deceased’s capacity to make a Will. They normally suggest that the person did not have the mental capacity when making the Will and therefore the Will is invalid. They can also suggest that the deceased was under duress by a person into making a Will and again did not have the appropriate capacity.

The second area involves Will dispute claims made pursuant to the Administration and Probate Act. This is a challenge against the estate by an applicant who claims the deceased failed to make proper and just provision from the assets of the estate to the applicant.

THE LAW HAS BEEN AMENDED TO ALLOW ANY PERSON TO MAKE A CLAIM AGAINST A PERSON’S ESTATE.

Persons who could previously not make a claim who now can make a claim include:

  • Step-children
  • De-facto’s, including same sex couples
  • Grandchildren
  • Brothers and sisters
  • Parents and any other person that is able to satisfy the Court that the deceased had an obligation to provide for them.
Who Can Make A Family Provision Claim?

Since the passage of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic), only certain classes of person(s) can apply for a Family Provision claim in Victoria. These classes include:

  • A current or former spouse of the Deceased.
  • A current or former de-facto partner of the Deceased.
  • A child or grandchild of the Deceased.
  • A step-child of the Deceased.
  • A registered carer of the Deceased.

A Family Provision claim must be made within six months of the Grant of Probate or Letters of Administration being made – a claim made beyond this period may be considered ‘out of time’ by the Court.

Who Can Contest a Will in Victoria?

Those considering contesting a will in Victoria may do so if they:

  • Are an eligible person;
  • Believe the testator failed to provide them with adequate provision;
  • Believe the deceased individual’s will is invalid. Often, such claims against an estate suggest that the testator was coerced or subjected to undue influence when finalising their testamentary wishes.

When contesting a will in Victoria, those involved often cover the legal costs incurred using funds sourced from the estate in question. The distinct cost of each claim typically varies from case to case, depending on the specific circumstances and required course of action. However, those who settle their will dispute out of court through negotiation or mediation can usually expect to sustain fewer legal fees throughout the duration of their proceedings.

Can a Child Contest a Parent’s Will?

There are various circumstances under which a child can contest their parent’s will. As with any eligible person, to be successful in their claim, a child of the deceased will need to establish that they did not receive adequate provision or that the will itself is invalid.

To be considered a child of the deceased and, thus, maintain the legal right to contest their will you will typically need to be one of the following:

  • A biological child of the testator who is under 18 years old;
  • A biological child of the testator who is a full-time student aged between 18 and 25;
  • An adult child who has difficulty financially supporting themselves;
  • An adopted child;
  • A step-child of the testator;
  • An individual who was not the legal child of the deceased, but was treated as though they were;
  • A child of the deceased who was born through the use of assisted reproductive techniques, such as IVF;
  • A child born through a surrogacy arrangement and who, after this parental order, became the legal child of the deceased.

If the legal child of a deceased individual decides to contest their will, they will need to do so within six months of probate being granted. It is for this reason that those who believe they have a claim against an estate are encouraged to get in touch with an estate lawyer promptly.

Claims of this nature can be emotionally demanding and, often, the legislative intricacies involved in their resolution can appear difficult to navigate. A will contesting specialist will assess the merit of your case and provide you with valuable insights and support based on their extensive industry experience.

Can an Ex-Wife Contest a Will?

An ex-spouse is considered an eligible person and, as such, is legally entitled to contest the will of their former partner if they wish to do so. Many people believe that once their divorce has been formally finalised, they will no longer have a moral obligation to provide for their ex-spouse. This, however, is not always the case.

If a deceased individual’s ex-wife was wholly or partially dependent on them at the time of their passing then, irrespective of when the relationship ended, she can contest the will. To be successful in their family provision claim against the estate, a testator’s former partner needs to establish that the deceased failed their moral duty to adequately provide for them.

An ex-wife who contests a will can, in this way, receive compensation if they believe they have been unfairly treated.

Can I Contest the Will of my De Facto Partner?

As the deceased’s de facto partner, you are eligible to contest their estate. However, before proceeding with your case, it must be established that you meet the legal requirements of a de facto partner.

To be considered a de facto partner of the deceased, an individual must have:

  • Shared a household with the testator;
  • Had a relationship as a couple with the deceased;
  • Not been married or related to the testator.

The court will also take numerous other factors into account, including:

  • The length of your relationship;
  • The nature and extent of your shared residency;
  • If at some point your relationship with the deceased became sexual;
  • Whether you were either financially dependent or interdependent on the deceased;
  • If you shared ownership of any property with the testator;
  • The degree to which you and the deceased committed to sharing a life together;
  • Whether you cared for or supported any children together;
  • If you both contributed to household duties, such as cleaning and cooking;
  • Whether your family and friends were aware of your de facto relationship.

There are various grounds under which you can dispute the testator’s will, with the appropriate option depending on your specific circumstances. Typically, will contest cases will fall into one of the following categories:

  • If you believe the testator failed to provide you with adequate provision for proper maintenance and support, you can pursue a family provision claim;
  • The deceased lacked testamentary capacity when writing and validating their final wishes;
  • The testator was under undue influence, coerced or manipulated by a third party to make certain decisions in their will.
Can I Dispute the Estate of Someone I was Financially Dependent on?

If you were financially dependent on the deceased and, after their passing, you believe they failed to provide you with adequate provision; you can contest their will.

However, before proceeding with your case, it must be determined that you are an eligible person. Thus, you must show that, at a particular time, you had a relationship of dependency with the testator whereby you either wholly or partly relied on their financial support.

Will contests of this nature can be complex and, often, there are various conditions that must be satisfied for an applicant to be deemed eligible. For instance, simply establishing that you were financially dependent on the deceased usually won’t be enough for your claim against an estate to hold legal merit. Generally, claimants need to meet additional requirements, such as being the grandchild of the deceased or a member of their household.

When deliberating your case, the Court will consider:

  • Whether the deceased has provided you with reasonable financial provision for proper maintenance and support;
  • Your existing and future needs, as well as those of any other beneficiaries;
  • The size and nature of the deceased’s estate;
  • Any physical or mental disability experienced by those involved, including both yourself and the estate’s beneficiaries;
  • Any another circumstances, such as prior conduct, which may have influenced the deceased’s distribution of their estate.
Can I Dispute the Estate of Someone I was Estranged from?

If an eligible person makes a claim against an estate, the Court will take the closeness of their relationship with the deceased into account.

For an individual to be considered estranged, it must be determined that the applicant and the deceased either physically or emotionally distanced themselves from one another. When those involved fail to reconcile before the testator’s passing, this is known as estrangement.

Estrangement doesn’t automatically prevent a person from making a claim; however, it can make it particularly difficult for them to achieve a successful outcome. This is because, ultimately, they need to establish why the deceased ought to have provided for them, even though they had no contact.

During a case that involves estrangement, the Court will assess various factors including:

  • Is it reasonably certain that the individuals were actually estranged?
  • How long had the deceased and the applicant been estranged for?
  • What circumstances led to those involved becoming estranged?
  • What is the claimant’s financial situation?
  • How large is the testator’s estate?
  • Did either individual attempt to make reconciliation?

However, it’s important to note that, typically, estrangement alone will not overrule a parent’s obligation to provide for their child. Thus, if you’re an estranged individual seeking greater provision from an estate, speaking with a qualified professional is crucial. With extensive experience resolving will disputes, your estate lawyer understands the technicalities involved in cases of this nature and can provide you with expert guidance.

Is There a Time Limit For Filing a Will Contest?

The Administration and Probate Act 1958 (Vic) declares that, if an eligible person intends to contest a will, they will need to make their claim within six months of probate being granted.

Under certain circumstances, however, the Court may allow for this time frame to be extended. Situations of this nature are uncommon though and are by no means guaranteed. For such a notion to be approved by the Supreme Court, it is paramount that the estate in question has not been fully distributed among beneficiaries.

How to Contest a Will

If you believe that you are entitled to a greater portion of an estate, that you were wrongly left out of a will, or that the document itself is invalid, you can contest the will. When a claim is made against an estate, typically, a clear legislative process will be followed. By gaining professional assistance from an experienced estate lawyer, you can ensure that this procedure is as simple and stress-free as possible.

To successfully contest a will, you will need to:

  1. Assess the Merit of Your Case
  2. Determine the Appropriate Type of Claim
  3. Gather Relevant Evidence
  4. Case Proceedings

 

1. Assess the Merit of Your Case

Before investing time and resources into contesting a will, it is important to establish whether your case would be viable if taken further. While your claim may appear to hold merit, relevant legislation could suggest otherwise. As such, receiving expert advice from a will contesting specialist who understands the intricacies of cases like yours is crucial.

During this stage, you will also need to determine whether you are an eligible person who can legally contest the will in question. To be recognised as a valid claimant, an individual must be one of the following:

  • The surviving spouse or civil partner of the deceased;
  • A former partner of the testator that has not remarried or entered into a new civil relationship;
  • An individual who was in a de facto relationship with the deceased;
  • A child of the testator or an individual who, while not being the legal child of the deceased, was treated as though they were;
  • An individual who was wholly or partially dependent on the testator at the time of their passing;
  • A person who regularly received maintenance from the deceased.

2. Determine the Appropriate Type of Claim

Once you have established that your grounds to contest a will are plausible, you will need to define the specific nature of your claim and start building a comprehensive case. There are various types of claims that can be lodged against an estate and, prior to pursuing your case; you will need to decide which approach is the most relevant to your specific circumstances.

Your options for contesting a will include:

  • Making a Family Provision Claim;
  • Challenging the testamentary capacity of a testator at the time their will was written and signed;
  • Claiming that the deceased was subjected to coercion or undue influence when formally recording their testamentary wishes.

If you feel that you have a valid claim, it is important to seek professional guidance promptly. This is because an eligible person only has six months from the time probate is administered to file a case against an estate.

3. Gather Relevant Evidence

If you intend to contest a will, ensuring that you have reliable, relevant evidence that supports your claims is crucial. By presenting evidence during the proceedings of your case, you will be able to provide valuable confirmation that backs up your claims and reinforces your standpoint.

The particular evidence you require to build a strong case will differ depending on the context of your claims. A specialist estate lawyer can guide you through this process, helping to reduce the pressure you may endure during this stage by ensuring you are adequately prepared to prove your claims.

When you contest a will, comprehensive evidence can effectively support your case when the Court examines the following:

  • The reasoning behind the deceased’s testamentary wishes;
  • Whether it is possible that the will was tampered with;
  • If the testator had a moral duty to provide the claimant with a certain level of care;
  • Whether the claimant was dependent, either wholly or partially, on the deceased at the time of their passing;
  • Whether the claimant received adequate provision in the testator’s will;
  • The relationship that the claimant had with the testator;
  • The extent to which beneficiaries of the will in question will be impacted if changes are made to the distribution of the estate.

4. Case Proceedings

Typically, a will dispute can be settled without the need for Court proceedings.

This is because, prior to taking their case to Court, affected parties will often engage in negotiations and reach a settlement. Such an approach can help the individuals involved in a will dispute save time and money, while also giving them the opportunity to discuss their thoughts in a relatively informal setting.

If a mutual agreement cannot be reached through negotiation, you will likely be referred to mediation. Unlike negotiation, during mediation the executor must disclose a list of the estate’s assets, including their value. For this reason, mediation often allows individuals to reach a far more informed, fair final decision.

When a loved one passes away, this can inflict a significant amount of strain on the relationships of those who are impacted. Unfortunately, contesting the deceased individual’s will can amplify such tensions. If you are able to settle your case out of court, you can usually avoid further intensifying these stresses.

What is the Point in Making a Will if it Can Just be Challenged?

A Will is necessary as it is the starting point in any claim. The Courts take into account the terms of the Will and the reasons why the Will maker made the Will the way he or she did. The Courts are well aware that people have the right to leave their assets as they choose by their Will and so the exercise of the Court’s power to interfere with a Will is only done very carefully.

How to Stop a Will Being Contested

When planning the distribution of your estate, gaining assistance from an experienced will specialist can help ensure your testamentary wishes are accurately conveyed. It is, however, important to note that regardless of how comprehensive your will is, it may still be contested.

Even though it is not possible to guarantee that your will will remain unchanged after your passing, there are various steps you can take to help alleviate the chances of it being contested.

  1. Leave Potential Claimants Adequate Provision
  2. Include a No-Contest Clause in Your Will
  3. Structure the Ownership of Your Assets
  4. Transfer Some of Your Assets While You’re Still Alive

 

1. Leave Potential Claimants Adequate Provision

Although this option may not seem particularly desirable, it does have the potential to help prevent individuals from being successful in their case against your estate.

When applying this strategy, carefully ensuring that the recipient receives provision that is considered adequate and modestly reasonable in the given circumstances is crucial.

Many individuals believe that giving potential claimants a small sum of money in their will is an effective way to deter or prevent them from making a claim. This is untrue and, in actual fact, will often merely anger the person into instigating a case.

2. Include a No-Contest Clause in Your Will

No-contest clauses are written with the intention of discouraging individuals from taking out a claim against your estate. They do this by increasing the risk involved in contesting your will.

When including a no-contest clause in your will, you are required to leave the potential claimant something of value. While this may seem unappealing, it allows for you to give the recipient something to lose if their case against your will is unsuccessful. This may encourage them to simply take the inheritance they have been given, rather than fighting for a greater share of your estate and ending up with nothing.

Clauses of this nature are not always legally enforceable and, because of this, it would be suggested that you discuss your options with a will contesting specialist.

3. Structure the Ownership of Your Assets

If two individuals share ownership of a property or bank account then, in the event that one of them passes away, the other will inherit the deceased’s share. In such instances, there is typically no need for the testator’s will to be referenced.

If there is a certain individual you would like to receive your superannuation when you pass away, there is the option to complete a “binding nomination”. By lodging a binding nomination, you can appoint a beneficiary of your choosing to receive your superannuation benefit during the administration of your estate.

4. Transfer Some of Your Assets While You’re Still Alive

By employing this strategy, you are exercising the notion that if your assets have already been distributed prior to you passing, a case cannot be pursued against your estate.

Before applying such tactic, however, it is paramount that you understand the level of risk involved in its use. As you are transferring legal ownership of certain assets to another individual, they can technically manage them as they wish. This means that there is an incredibly important aspect of trust involved in dealings of this nature and no guarantee that the recipient of your assets will act in your best interest.

If you are deliberating whether or not to follow this approach, speaking with an experienced estate lawyer will likely be a beneficial course of action to take. By gaining professional advice and assistance, you can ensure that you make a carefully considered decision and are well aware of any complications that may arise.

Can I Contest a Foreign Will?

In an increasingly globalised world, foreign wills aren’t uncommon. When an individual creates their will while in a certain country, then relocates and fails to update their final testament accordingly, their will is said to be foreign.

If the testator of a foreign will passes away, this can raise certain complications, especially if an eligible person decides to contest the estate.

The Challenges of Foreign Wills

There are various difficulties often encountered by those directly impacted by the specifications of a foreign will, including the following:

  • Inheritance laws can differ drastically across countries. If the testator’s will wasn’t updated to reflect their current location’s testamentary requirements, their estate might be incredibly difficult and costly to administer.
  • The deceased may have owned assets across different jurisdictions, resulting in disagreements arising and confusion as to how they ought to be managed. This, in turn, can often prompt an eligible person to contest the estate.

Contesting a Foreign Will

The validity of a foreign will must be established before an eligible person can contest the estate.

In Victoria, the Court will examine any relevant legislation from the jurisdiction where the deceased’s final testament was written. It’s important to note that, in some circumstances, a will can be deemed valid and legally enforceable even if it doesn’t fully comply with Victorian inheritance law.

Thus, if you are interested in contesting a foreign will, discussing the technicalities of your case with an experienced estate professional is crucial.

What is the Meaning of Proprietary Estoppel in a Will Contest?

In some cases, testators make verbal promises to beneficiaries and, after their passing; it’s found that they have not honoured such assurances in their final testament.

For a proprietary estoppel case to be successful, a claimant must establish that:

  • There was a promise made to them by the testator;
  • They relied on this promise and believed it was true;
  • Because of their reliance on the testator’s promise, they suffered detriment.

Typically, based on a verbal promise, beneficiaries may expect to inherit certain property, land or a business. With this in mind, an individual may make sacrifices and, when the asset in question is bequeathed to another beneficiary, this can be incredibly disappointing.

In such instances, the negatively impacted individual can contest the will but, to be successful in their claim, they must provide reliable evidence showcasing their loss. Commonly, claimants encounter costs from resulting life and career choices, such as relocating or quitting their existing job.

Can You Contest Charitable Gifts Left in a Will?

It’s not unusual for estate disputes to arise when family members feel as though they have been inadequately provided for in comparison to a charity. In such instances, an eligible person may decide to lodge a family provision claim against the estate in a bid to gain a greater share of the assets in question.

When individuals leave funds or assets to a charity, there are various types of bequests they may decide to employ:

  1. Residual – This is where an estate is distributed accordingly among beneficiaries and, after any legal fees for administration have been paid, the remainder of the estate is left to a charity. Bequests of this nature are the most common option testators decide on but, unfortunately, will often act as a catalyst for estate disputes. This is because the estate’s value can fluctuate, and the deceased’s will is not always updated to account for this.
  2. Fractional – A testator specifies a certain percentage of their estate to be gifted to the charity of their choice.
  3. Pecuniary – The deceased nominates a certain asset that they intend to gift to the charity such as a certain sum of money, stocks, property or shares.
  4. Whole Estate – The testator’s entire estate is inherited by a charity, as nominated by them in their final will and testament.

For more information about Contesting or Challenging a Will, see the following articles:

Estate Lawyers & Inheritance Lawyers FAQs

What is an Estate Lawyer?
How Can an Estate Lawyer Help You Contest a Will?
How Do I Know Which Estate Lawyer is Right for Me?
Can I Contest a Will Without a Lawyer?
What is an Estate Lawyer?

An estate lawyer is a legal professional who provides their client with advice and consultation in will dispute cases. Your estate lawyer can represent and guide you during each stage of your estate dispute, using their expertise and experience to help you achieve a desirable outcome.

At Hentys, our estate lawyers offer a free initial consultation to prospective clients. This means those who are considering contesting a will can discuss their potential case with a specialist and determine the merit of their claims. Thus, if you think you might have a valid claim against an estate, it would be recommended that you speak with a professional before proceeding.

An individual who is preparing to defend a will may also seek assistance from an estate lawyer. Typically, the executor or administrator of an estate will be required to defend the will so, if you’re in this position, getting expert guidance from an estate lawyer can help you understand your responsibilities and the intricacies of your case.

Most claims are settled out of court, with both parties being able to reach an agreement through mediation. Mediation involves those involved meeting privately, with their estate lawyers present, to discuss and reconcile the situation. This means that they can avoid the costs of attending court, which may otherwise significantly deplete the estate’s value.

How Can an Estate Lawyer Help You Contest a Will?

With extensive experience resolving will disputes, an estate lawyer can provide valuable insights and assistance during each stage of your case.

A specialist estate lawyer can:

  • Assess the legal merit of your claims against an estate;
  • Determine if you’re eligible to content a will;
  • Identify the type of claim that’s best suited to your situation;
  • Answer your questions in plain English;
  • Ensure you’re well informed of your options during every stage of your estate dispute;
  • Make sure you’re aware of your legal rights.
How Do I Know Which Estate Lawyer is Right for Me?

Estate disputes can be complex, with various legal technicalities that must be taken into account throughout. With the right estate lawyer guiding you during each stage of your will dispute, you can ensure you are well informed and that you are following the correct procedures.

When deciding which estate lawyer is right for you, it’s important to do the following:

  1. Listen Closely to What Your Estate Lawyer is Saying
  2. Get an Idea of the Lawyer’s Strategy
  3. Consider How the Other Side Will Respond

 

1. Listen Closely to What Your Estate Lawyer is Saying

This might seem obvious, but it’s vital that you listen to your potential estate lawyer and their thoughts on your case carefully.

In Australia, there are clear legislative rules that detail your estate lawyer’s obligation to deliver realistic, impartial advice. This means that they cannot push their own personal interests, so the professional insights you receive should be completely unbiased. As such, if your lawyer believes that your claims against an estate hold little merit and are unlikely to be successful if pursued, gaging a sound understanding of why is crucial.

In some instances, those who seek a greater share of an estate may be better off financially if they just accept the assets they’ve already been given. If your lawyer believes that the costs of a will dispute will significantly diminish the estate’s value, you could dispute the will only to end up in the same position as before. Therefore, listening to the expert opinion of your estate lawyer before proceeding with a claim is crucial.

2. Get an Idea of the Lawyer’s Strategy

It’s not uncommon for different law firms to employ divergent strategies when working to resolve an estate dispute.

While some estate lawyers approach will disputes with aggressive litigation strategies, other law firms prefer to resolve the situation through mediation. Before becoming involved in an estate dispute, you will need to determine which approach you would feel more comfortable with.

3. Consider How the Other Side Will Respond

Once you’ve weighed up whether a certain lawyer’s approach to will disputes is right for you, it’s important to consider how the opposing side will likely respond to such tactics.

If the aggressive strategy employed by your estate lawyer will likely amplify conflicts, rather than helping you reach an agreement, you may be better exploring your options further. You’ll need to consider the particular circumstances of your will dispute, taking these into account when deciding which estate professional will help you get the outcome you desire.

Can I Contest a Will Without a Lawyer?

Will disputes are often complex and, if you are going to contest a will, it’s important to understand the legal technicalities involved in doing so. For this reason, it is typically suggested that individuals engage assistance from an experienced estate professional.

An estate lawyer can provide you with valuable guidance and legal advice. This involves:

  • Helping you determine whether you are eligible to contest a will;
  • Establishing whether your claim against an estate holds merit;
  • Determining the type of claim that would be best suited to your circumstances;
  • Resolving queries that may arise during your estate dispute.

For more information about Estate Lawyers and Inheritance Lawyers, see the following articles:

Will Disputes & Estate Disputes FAQs

Do I have to go to Court to Resolve a Will Dispute?
At a Mediation, Must I Stand up and Speak?
Who Pays the Legal Costs?
How Much Can I be Paid From the Estate?
How Long Will it Take for Your Will Dispute to be Resolved?
What Can I do if I Don’t Agree With the Way the Executor is Acting?
What Does The Court Look At When Considering A Family Provision Claim?
What Factors Will Be Taken into Account by the Court When Considering Will Dispute Claims?
What is Inheritance Impatience?
What is a Probate Caveat in a Will Dispute?
Do I have to go to Court to Resolve a Will Dispute?

You don’t always have to go to a Court hearing as claims may be able to be negotiated or settled prior to proceedings being issued.

At Hentys, our aim is to resolve Will dispute matters by a settlement wherever possible. We endeavour to negotiate a settlement before Court proceedings are commenced or by arranging an early mediation in order to reduce legal costs, obtain an early resolution and preserve family relations, which is often strained with legal proceedings.

As we do our best to ensure that a fair result is achieved for you, we will advise that your case should proceed to Court where it is in your best interest. If the claim is not settled at the Mediation, then the case is listed for a court hearing and some time later your claim will be heard by the court, and a decision made. However, many such cases seem to settle by agreement before the court hearing, as a result of further negotiations.

At a Mediation, Must I Stand up and Speak?

No, because you would be represented by Hentys and we do all the speaking on your behalf. You will not need to speak to the other side. Usually all of the discussion is between the lawyers, so you will not need to speak to the executor or to any of the beneficiaries. However, if you wish to make a comment you are certainly able to do so.

Who Pays the Legal Costs?

When your claim for inheritance in a Will dispute is decided by the Court, the Court will usually order that the majority of your total legal expenses (ie. your professional fees and disbursements) should be paid by the Estate.

However, every court case carries risk, so no Claimant can be sure that the Estate will actually end up being required to pay the Claimant’s legal fees for them.

Even if the Court does award “costs” in your favour, you can only recover about 60% of your legal fees. The exact percentage depends upon the decision of the Court. This means that Claimants must be prepared to pay approximately 40% of their legal expenses from their own pocket or from the amount recovered, whether they win or lose.

However, if you are eligible for our no win no-charge agreement, the risk of being out of pocket for our legal fees is reduced. We will inform you whether you qualify for our no win no-charge agreement.

How Much Can I be Paid From the Estate?

Every Will dispute case is different, and as such there is no hard and fast rule about the size, or the amount, that a court may order the Estate to pay to you. It all depends upon factors such as:

  • the size of the estate
  • your own financial needs
  • the needs of the beneficiaries named in any Will, or these who benefit from any Intestacy
  • any promises made by the Will-maker before he died
  • the provisions the Will-maker put in the Will.
How Long Will it Take for Your Will Dispute to be Resolved?

The exact amount of time required for those involved in a will dispute to reach a settlement agreement can vary significantly between cases.

The duration of your proceedings will, of course, be impacted by the specific circumstances of your case and whether or not it is taken to court. If a mutually beneficial resolution can be reached through mediation, the estate will likely be finalised far sooner than if it’s heard in court.

In cases where the estate is incredibly complex and extensive, it’s also not uncommon for those involved in the will dispute to take an extended period of time to reach a decision.

As there are various factors that will impact the overall length of your estate dispute, it’s suggested that you get in contact with an estate professional promptly to discuss your case. If you are considering contesting a will or if, as the estate’s executor, you have been called to defend against a claim, this is a great first step to take.

What Can I do if I Don’t Agree With the Way the Executor is Acting?

As an interested beneficiary, you have the right to be independently represented during any litigation at any time so you can have someone who is acting to further your interests only. If you are not happy with the Executor then it is advisable that you instruct lawyers to act just for you.

What Does The Court Look At When Considering A Family Provision Claim?

Courts will generally adopt a fairly holistic approach to a Family Provision claim, and take into account all of the facts of a case. As a rough guide, however, the strength of a Family Provision claim will often depend on:

  • The Will and evidence about why the Will maker made the Will as they did.
  • Whether the person who died had a ‘moral duty’ to provide for the applicant.
  • Whether adequate provision was made for the applicant, and if not, what provision should be made.
  • The physical, mental or intellectual disability of the applicant and any other beneficiaries.
  • Whether the applicant was fully or partly dependant on the Will maker.
  • The nature of the relationship between the applicant and the Will maker.
  • How the other people named in the Will may be affected by a change to the Will.
What Factors Will Be Taken into Account by the Court When Considering Will Dispute Claims?

When determining the outcome of an estate dispute, the Court will consider:

  • The nature and length of the relationship between the deceased and the applicant;
  • Any obligations and responsibilities of the deceased to the applicant, other applicants and the beneficiaries in the Will;
  • The size of the estate;
  • The financial position of the applicant, other applicants and beneficiaries;
  • Any disability of the applicant;
  • The applicant’s age;
  • Any contribution made by the applicant in building up deceased’s estate;
  • Any benefit of the other person to maintain the applicant;
  • The character and conduct of the applicant;
  • Any other matter the Court considers relevant.
What is Inheritance Impatience?

Inheritance impatience is a form of elder financial abuse, whereby an individual engages in the improper or illegal use of an older relative’s property or personal funds.

This is becoming increasingly prominent as life expectancy rates rise, meaning that people have to wait longer to receive an inheritance. Thus, individuals may be driven to wrongly acquire certain assets without the rightful owners’ informed consent.

Commonly, in doing this, the offender will commit fraud, pressure their older family member or manipulate them into managing their assets in a certain way.

If you are concerned that someone in your family is displaying signs of inheritance impatience, get in touch with an experienced estate lawyer. At Hentys, we often receive enquiries of this nature. Thus, our estate professionals can assist you in determining the appropriate course of action and, most importantly, protecting your loved ones from elder financial abuse.

What is a Probate Caveat in a Will Dispute?

For a will to be validated, a grant of probate must be awarded. However, a successful application for a probate caveat prevents this from occurring.

Typically, such action will be sought out by an individual who believes the testator did not intend for the document that was admitted to act as their final will and testament. For instance, they may believe that the document was forged, or that the deceased was manipulated or coerced into writing it.

While a probate caveat is being enforced, none of the estate’s assets can be administered to beneficiaries. In addition to this, even if an individual is an eligible person, they cannot contest the will.

Can a Probate Caveat be Voided?

For a probate caveat to be withdrawn, one of the following events must occur:

  • It’s established that the document that was submitted to the Court is legally valid;
  • The probate caveat has expired and, thus, is no longer in effect;
  • The caveat is retracted by the individual by whom it was filed.

For more information about Will Disputes and Estate Disputes, see the following articles:

Defending a Will FAQs

Defending a Will: Where to Start
How Much Does it Cost to Defend a Will?
Who Covers the Cost of Defending a Will?
What is the Executor’s Role in Defending a Will?
Will I Have to go to Court to Defend a Will?
How Hentys Can Help You Defend a Will
Defending a Will: Where to Start

The first step in defending a Will is to determine whether the person (or persons) contesting the Will is legally eligible to make a claim upon the deceased’s Estate and whether they are making the claim in the required time frame.

Time is a huge factor when it comes to defending a Will.  If the claim has been made outside the time limit, there is a possibility the claim will be dismissed by the Court, however this is not always the case as extensions can, and have, been granted by the court.

How Much Does it Cost to Defend a Will?

In most cases, the legal costs associated with defending a Will, will be paid out of the Estate. During the legal process, the Executor will generally not be liable for any legal costs, until an outcome has been reached, when costs will come from the Estate.

In accordance with Victorian Legislation, upon engaging our services, Hentys Lawyers will provide you with a detailed Costs Agreement written in plain English so that you are fully aware of any costs you are likely to incur throughout the process.

For more information on defending a will, don’t hesitate to get in touch with the team at Hentys Lawyers.

Who Covers the Cost of Defending a Will?

In the case of a will contest, the executor or administrator of the estate will not incur any personal costs when defending against the claims.

Ultimately, the Court doesn’t want to deter executors from carrying out their duties and defending the will. Thus, any legal costs accrued while defending the will will be covered by the unsuccessful party, be that either the claimant or the estate.

It is, however, important to note that in order for such notion to be upheld, the executor must ‘act reasonably’ throughout the duration of the case.

For instance, if they fail to act in the best interest of the estate and push their own personal agenda, they may become liable for the legal costs they accumulate. This may also be the case if the executor unnecessarily and carelessly delays proceedings, or refuses to cooperate with involved parties.

What is the Executor’s Role in Defending a Will?

When completing their duties, such as administrating the estate, the executor of a will is obliged to act in the best interests of the testator. Thus, if the will is contested, the appointed executor is responsible for defending the deceased’s testamentary wishes.

You may be required to defend the estate in question against the following:

  • Family Provision Claims, where an individual believes they were not provided with adequate provision for proper maintenance and support;
  • Claims that question the deceased’s testamentary capacity at the time their will was written, signed and validated;
  • Cases based on the grounds that the deceased was under undue influence when creating their will and that, because of this, their final testament does not accurately reflect their true wishes.

How an Estate Lawyer can Assist You in Fulfilling Your Role

In the case of a will contest, as the executor, it is suggested that you seek out expert advice from an estate professional. With extensive experience in the area, they can help you understand the legislative complexities of such claim, all the while determining:

  • If the claimant is an eligible person;
  • Whether the case has been lodged in the appropriate time frame. Typically, individuals will need to formally pursue their claim within six months of probate being granted;
  • The type of claim being made;
  • Whether the claimant’s case against the estate is meritable;
  • The preferred approach for resolving the will dispute.
Will I Have to go to Court to Defend a Will?

In most instances, will disputes can be settled out of court. This is because, before a case can be taken to court, individuals must show that they have attempted to resolve the dispute through mediation.

What is Mediation?

During mediation, the involved parties must meet at a neutral location, accompanied by a Registrar of the Court or a private mediator. This individual acts as an independent third party in the discussion that follows, providing unbiased guidance to assist individuals in reaching a mutually beneficial agreement. Mediators aren’t expected to create a strict agenda; however, they must ensure that participants follow the proper legal process.

When proceedings commence, the legal representative for each individual will have the opportunity to explain their position.

At the conclusion of this discussion, the involved parties can propose settlement offers that they believe are fair given the circumstances. This will continue until those involved either resolve the matter or terminate the mediation.

In cases where a settlement is reached at mediation, each party will sign a binding agreement, formally recording the conditions of their final decision. The executor of the estate will then complete their duties and administer estate assets as outlined in the formal document.

However, if the involved individuals fail to settle, the case will likely be taken to court, which can be a costly, time-consuming and emotionally draining experience for all of those involved.

How Hentys Can Help You Defend a Will

If you are the executors of an estate and have found yourself in a position where you have to defend a will, Hentys Lawyers can help you, by:

  • Preparing Affidavits and other documents that satisfy the formalrequirements of the Court.
  • Checking whether or not the challenge to the Will is made within the prescribed time limit.
  • Checking whether the person who is challenging the Will is legally eligible to make any claim upon the estate.
  • Advising you about Mediation Conferences, as well as Court procedures, rules, timetables and hearings before and during Court proceedings.
  • Advising you about the merits of settling or defending claims.
  • Instructing you as to what Evidence is required to successfully defend a Will challenge case.
  • Explaining how relevant Laws apply to your case and how we use them settle or defend the claim being made against the estate.

If it wasn’t for the excellent manner and clear intelligence and experience of the team at Hentys, I would have not received anything. I believe my money was well invested with Hentys and would have no hesitation in being a referral to any one seeking Legal services – Anthony Higgins

Our Simple 4 Step Process

1 Review Your Claim
One phone call is all it takes for us to confirm whether you have a reasonable claim or not

1 Assess Your Case
We estimate the size of your claim and present you with our ‘No Win No Fee’ plan

1 Commence Proceedings
We’re with you every step of the way, managing the entire process on your behalf

1 Settle Your Case
We apply our knowledge and expertise to reach the settlement you are entitled to

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