How Long Does It Take to Contest a Will?
Rule of thumb for contesting a will
In Melbourne, Victoria you have strictly six months from the date that a grant of Probate is made to contest a will. However, once you make an application to contest a will, 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 is heard in court.
In cases where the estate is incredibly complex and extensive, it is also not uncommon for those involved in the will dispute to take an extended period of time to reach a decision.
However, if you are looking for a general idea of how long the process of contesting a will takes, please read on.
From initiating proceedings to mediation –
- Once you have been retained as a client and probate has been granted, we begin the initiating process. In the preliminary stages we ask you to sign Overarching Obligation certifications so we may file this with the Court. We also file a Proper Basis Certification, and an Originating Motion which makes the Court aware that we want to launch a proceeding.
- When this application has been approved by the court, we then serve this application along with all the documents filed with the court upon the other side. This is to let them know you are eligible and are Contesting the Will of which they are the executor of.
- The next step is to wait for the other side’s Notice of Appearance, which shows that they accept their role in the dispute.
- When the other side’s Notice of Appearance has been received, it is then up to the parties to draft timetabling orders. This timetabling document, called Minutes of Consent Orders, lists when items such as Affidavits/Position Statement from each side will be due, a date the court-ordered mediation has to be conducted by, and a trial date in case the mediation falls through. Naturally, the complexity of the matter and the availability of the court affects when the dates are set.
- After these orders have been finalised by the court, mediation is typically scheduled in three to four months’ time, with the trial is typically being set one to two months following the date mediation is due. This time frame gives both parties sufficient time to prepare their initial Affidavits/Position Statements and provides the Plaintiff a chance to draft and file their response to the Defendant’s Affidavit/Position Statement if required. It also allows us to notify all the other beneficiaries listed in the Will that proceedings are taking place and they legally entitled to defend the claim if they so choose.
Therefore, from the date that proceedings are initiated, a typical matter will take about five to six months to reach mediation, and a further one to two months on top of that should the matter go to trial.
However, our aim at Hentys is always to settle at mediation as it keeps the costs down and provides a much better resolution for all. 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. Therefore, mediation is the preferred approach as in order to reach a mutually beneficial outcome and preserve familial relationships.
Settlement and beyond
When a matter settles at mediation, the Terms of Settlement are written down and signed by all parties, and this acts as a binding agreement between both sides. In these terms, dates are set for when payment of the settlement monies are due. Unfortunately, there is no set formula for these dates. This is because they depend upon the estate’s assets and take into consideration factors including whether there is property that needs to be sold or whether there are any other claims being made against the estate.
Once all the terms in the agreement have been executed and the monies have been paid, the court is advised that the matter has been settled and the proceedings should be dismissed.
So how long will contesting a will take for me?
If you are considering contesting a will or if, as the estate’s executor, you have been called to defend against a claim, getting in touch with the team at Hentys is a great first step to take. With more than 25 years of experience handling will disputes and 95% of our cases settled out of court, we’re dedicated to helping our clients reach the settlement they’re entitled to.
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