What happens if my Will dispute goes to Court?

If you find yourself contesting a Will, there is always the prospect of your will dispute going to court. This is why whenever you choose to pursue legal action, you must be prepared to a variety of outcomes. The aim of the Court is to resolve all cases quickly and cost-effectively, so when attending court you must ensure that you are prepared and have all relevant information at hand.

Will dispute judicial settlement conference

Some Will disputes will always end up at Court, although not necessarily at a hearing. A judicial settlement conference is an alternative to mediation where the net value of the estate being contested is under $700,000.00.

The purpose of a judicial settlement conference is to, as you can guess from the title, settle the proceeding. If settlement is not possible, it also serves to narrow the issues and determine the next steps to bring the matter quickly to trial.

A judicial settlement conference is overseen by a judge in a conference Courtroom. The Judge, the parties, and their legal representation are seated around a table in the conference.

The conference begins with all parties in the one room with the judge who outlines the process and answers any questions parties may initially have. The parties can then separate themselves in order to conduct private meetings with their representation. Throughout the day, the parties may request that the judge call a joint session in the conference Courtroom. These sorts of requests will be accommodated wherever practicable, depending upon the availability of the conference Courtroom and the judge.

Should the matter settle during this conference, parties are to sign Terms of Settlement and advise the Court as soon as practicable that their proceedings have settled.

Post mediation/judicial settlement conference

Directions Hearing

Should your matter fail at mediation or a judicial settlement conference, it will be set down for trial. Before trial, the Court expects parties to make reasonable attempts to resolve any issues between them. Should a pre-trial issue be resolved, parties will need to submit consent orders to the court. If there issues cannot be resolved amongst the parties or are complex, parties can request for a directions hearing.

A directions hearing often involves setting time frames for steps to be completed, such as when documents need to be served or filed, the date of the trial, when fees for trial are to be paid and by whom, and any other orders to ensure the trial runs smoothly and on time. Should you not comply with these orders, the court may order that you pay costs or your case might be dismissed. Once a trial date is set, parties will need to be ready to proceed on that date.

Final Hearing

At trial, it is not the role of the judge to investigate the facts. Instead, parties must choose what evidence to put forward in their case to the Judge. The general way a trial runs is as follows:

    • The plaintiff (i.e. the person who has contested the Will) or their representative will outline their case to the Judge or raise any preliminary matters to be sorted before the trial begins.
    • The defendant (i.e. the executor of the Will) will then be given an opportunity to speak or raise any preliminary issues.
    • Here, the judge may then make a ruling on these preliminary matters.
    • The plaintiff then has the opportunity to call any witnesses to give evidence and ask them questions.
    • After this, the defendant can ask the witness questions.
    • After this, the plaintiff may then have the opportunity to ask the witness any further questions which arise from the defendant’s questioning.
    • This process then repeats when the defendant brings out any of their witnesses.
    • After the questioning of witnesses, parties may then present other evidence, such as documents, through the witnesses.
    • The plaintiff and then the defendant then makes their final submissions to the judge and summarises their analysis of all of the evidence and legal arguments presented during the trial.
    • Finally, the judge delivers their final decision on the case.

In making their final decision, the judge takes into consideration the following:

1. The degree to which, at the time of death, the deceased had a moral duty to provide for you. This moral duty turns upon:

    • Whether you were being maintained by the deceased before their death, and whether the deceased had assumed that responsibility. This includes but is not limited to:
      • Any financial gifts the deceased made to you, such as assisting paying for groceries, rent, or educational expenses;
      • Whether you were living with the deceased
    • Your financial resources and needs. This includes but is not limited to:
      • What assets you have in your name, such as whether you own your house, how much savings and superannuation you have;
      • Whether you have any outstanding debt, such as mortgages and credit card repayments;
      • Whether you have any dependent children;
      • Your ability to earn income; and
      • Your current health and medical requirements.
    • The current and future needs of yourself, any other applicants, and beneficiaries of the estates.
    • Whether there have been any benefits previously given by the deceased to you or to any beneficiary.
    • Any other matters the Court may consider to be relevant.

2. The degree to which the distribution of the deceased’s estate fails to make adequate provision for your proper maintenance and support, including:

    • The size of the Estate and its liabilities; and
    • Any contribution you may have had to build up the estate or the welfare of the deceased/deceased’s family.

Speak with a will dispute expert

Once a judge makes a ruling on your matter, you will then be bound to the decision the judge makes. This is why settling matters at mediation or a judicial settlement conference is the preferred approach as it is more cost effective and allows parties greater input over the resolution of their case. We have experience dealing with hundreds of estate disputes, and over 95% have settled out of court. If you think you have a claim to contest a Will, call our estate lawyers today for your free 30 minute initial consultation.

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