How the Process of Contesting a Will Works

In a case where you want to Challenge or Contest a Will, the process is such:

The Enquiry Process

• Your enquiry will be received either via email or verbally over the phone, depending on how to choose to make contact. It is here that the strength of your case will be assessed through questions such as; when the person died and whether their Will has been accepted and verified by the courts (probate), why you believe you should be entitled to more, whether you believe the Will was executed in accordance with the law and a short history of your relation to the deceased.
• You will then be notified, and if the case is considered strong enough and worthwhile for you to pursue, you will be invited in for a free initial consultation with the Principal of the firm. At this initial consultation, you will be asked to go into greater detail about your situation and your options will be discussed further. The likely cost of the work will also be conferred, with Hentys in most circumstances operating under a no-win/no-fee agreement. This means that our legal costs do not have to be payed unless we provide you with a successful outcome.
• At the conclusion of the free initial consultation, you will be sent a costs agreement to consider. If signed and returned to Hentys, we begin acting for you as your legal representative.

Initiating the Proceedings

• Once you have been retained as a client, we begin the initiating process. In the preliminary stages we ask you to sign overarching obligation certifications and file these with the Court. This certificate basically states that during the civil litigation process, you agree to adhere to the list of legal obligations the Court asks of you. The list of requirements includes; to act honestly at all times, to not make a claim without proper basis, to take steps to sort out the dispute, to cooperate, to not mislead or lie etc. We also file a Proper Basis Certification, and an Originating Motion which makes the Court aware that we want to launch a proceeding.
• We also make the other side aware of the fact you are eligible and are Contesting the Will of which they are the executor of. They are served with everything we have filed with the Court as it is public record, and we then await their Notice of Appearance, accepting their role in the dispute.
• All the other beneficiaries listed in the Will are too made aware of the proceedings as they are legally entitled to defend the claim if they so choose.
• Timetabling orders are then made which, true to their title will give an outline of the timeline for the matter. It lists things like when Affidavits/Position Statements from each side will be due, a date the court ordered mediation has to be conducted by, and also a trial date in case the mediation falls through. Our aim is to always settle at mediation though, as it keeps the costs down and provides a much better resolution for all.

Affidavits/Position Statements

• Affidavits or Position Statements (which one we file changes in accordance with the size of the Estate) are arguably the most important part of any proceeding. These documents are your chance to outline to the other side exactly why you believe you are entitled to a different outcome than the one listed in the Will. The Courts provide a detailed list of what is exactly to be included. The most important parts required are; outlining the relationship you had to the deceased, the basis of the claim that the deceased owed a responsibility to make provision for your maintenance and support which they failed to do, the nature and extent of the deceased’s estate, and the financial position of yourself and of the other beneficiaries of the estate insofar as it is known to you.

Finalising a Proceeding

• Once Affidavit/Position Statements have been exchanged, the goal is to settle the matter at a mediation.
• A mediation is a confidential meeting that takes place between both the plaintiff (you) and the defendant (the executor/other side) and it is seen as a positive alternative to going to court. The mediation is most commonly held face to face in a ‘conference room’ environment rather than a formal court room and can be held either before a Registrar of the Court, or a private mediator. In both circumstances, the parties’ legal representatives begin by making short opening statements to the mediator, explaining their position. The mediator will then explain the purpose of the mediation to each of the parties, go through the costs involved if the proceeding were to progress to a hearing before a judge and generally finishes their opening by encouraging the parties to try and resolve the matter then and there.
• The professional mediator is engaged as a completely independent third party and is simply present to guide the discussion and to ensure the proper process is followed, they by no means set the agenda. They remain impartial and have no authority on the decisions regarding the settlement, their role ultimately is simply to encourage different viewpoints in the hope that they will reach a mutually agreeable solution.
• Once the mediator has finished their statements, the parties then move into separate conference rooms and offers of settlements are exchanged through the mediator until hopefully the matter is resolved or the parties decide to terminate the mediation.
• If a solution is reached, the settlement will then be written down and signed, and this acts as a binding agreement between both sides. At the execution of the terms of settlement, the dispute comes to an end and settlement monies are paid out. However, if the matter does not settle, then the registrar will re-list the matter before the Court to allocate a trial date before a judge, a costly exercise to say the least!
• At trial, everything is presented to a judge and they make a determination of what they believe is the most fair and just outcome in the circumstances – often a win/lose scenario. Z

Costs

• Irrespective of how the proceeding is finalised, for contesting a Will, the costs payable will come out of your portion of the Estate, and there is never a requirement to pay professional fees if settlement is less than those professional fees. Furthermore, we will always keep you updated on the likely total costs pending a successful outcome so that you remain fully informed throughout the entirety of the process.
• At the conclusion of it all – so once you have received your settlement monies and paid our costs, it is all over and we hope you walk away extremely pleased with the outcome. Your file is then stored and destroyed after 7 years in accordance with the relevant law.

If you have any queries, our Contesting a Will FAQs are a great place to start.

Alternatively, for more information or if you think you have a potential Will Contest, please do not hesitate to contact the team at Hentys Lawyers.