The simple answer is that you can't ever stop someone contesting your will. This is because state and territory legislation across Australia allows 'eligible' people to make a claim against an estate if they can establish that they have not been adequately provided for in the deceased's will.
A person may contest a will if a testator unjustly excluded them from the will, or made inadequate provision for them. A person contesting a will does so through a claim to the Supreme Court known as a Family Provision Claim.
In most cases, contesting a will means that you pay all legal costs and other associated fees out of pocket, even if your case is unsuccessful. If you're contesting your father's will, for example, you could face costs of $2,000 or more.
A Will can also be cancelled by changes in your personal circumstances such as marriage or starting a de facto relationship, separation, divorce or ending a de facto relationship.
Studies have shown that contesting of Wills in Australia has an average of 74 percent of Family Provision Claims in Australia which are successful. The success rate in Queensland is even higher at 77 percent.
The time limit to contest a will in the Australian Capital Territory is six months from the date of probate. The court can only make an exception under the Family Provision Act 1969 for a late Family Provision Claim if it judges that there is sufficient cause.
The success rate of contesting a Will depends on a number of factors and if you are considered an 'eligible person'. But a report conducted in 2015 by The University of Queensland found that 74% of cases challenged in court, and 87% of those that went before a mediator, resulted in the Will being changed.
The most straightforward way to minimise the prospect of someone contesting your will is to make adequate provision for anyone who might otherwise successfully contest the will. It is not necessary to make equal provision for all beneficiaries, only to do what a reasonable testator would do in the circumstances.
Determining the amount it will cost to contest a will in NSW can be a complicated process. The average cost to contest a will would be $5,000 – $10,000 if the matter stays out of court. If the matter goes to court, the average cost to contest a will would be $20,000 – $100,000.
If you're an “eligible person” or an “interested person” who is contesting a Will, legal costs may be paid by you directly or by funds from the estate depending on what happens in this order: whether the matter has been resolved during mediation.
A beneficiary can contest a Will if they're an “eligible person”. Otherwise, they cannot contest a Will unless they lived with the deceased and were wholly or partly dependent on them. But they should speak with a lawyer first.
Adult children can contest the will if they feel they've been unfairly left out by their deceased parent. If the matter can't be settled through mediation with the will's executor, then it will be up to the court to decide if they have a fair claim or not.
A testator will sometimes include a “no-contest” clause in a will in the hope of avoiding a Family Provision Claim. A no-contest clause typically states that anyone who contests the will forfeits their bequest. This type of clause is enforceable in some other countries but is non-binding in Western Australia.
Australian law allows an eligible person to contest a Will after Probate has been granted and court order on asset and property settlement has been finalised.
In Victoria, there is no way to prevent someone from challenging the validity of a will or contesting the provisions of a will. Indeed, the Administration and Probate Act 1958 explicitly makes allowance for eligible people with sufficient grounds to make a Testator Family Maintenance Claim against a deceased estate.
In family provision cases, the general rule is the claimant's costs are paid out of the estate if their claim is successful. If the claimant is not successful, they can be ordered to pay the estate's costs as well as their own.
More than 50 per cent of wills are being contested in courts, typically by family members fighting over how parents' estates should be divided between siblings.
A grandchild can contest the will of their grandparent in almost every jurisdiction of Australia. However, most states and territories that designate a grandchild as an eligible claimant also require that the grandchild was dependent on the testator for some form of maintenance.
'Contesting' usually relates to bringing a claim against the estate for provision, whereas 'challenging' is disputing the validity of the Will itself. They are subtle differences in the words used, but very different types of causes of action.
Lawyers or solicitors charge between $300 to $500 per hour for wills, and it depends on the complexity of your estate as to how much the total cost is with a solicitor.
Omitted Children: Rights and Intestate Share of Estate
As an omitted child, you are entitled to your intestate share of the estate regardless of what the Will states. There are a few exceptions, however, such as a Will that references an upcoming birth of a child, but states the child is specifically disinherited.
Once you notify us and provide at least one of the Proof of Death documents, then a permanent hold will be placed on any transaction accounts solely held by the deceased. This means: No money can be taken out of the accounts.
If one or more of the executors can't do their job, it is important to appoint a new executor as soon as possible. This can be done by contacting the probate court and appointing an executor. If there is no will, the court will appoint an administrator to manage the estate.
WHAT ARE THE SUCCESS RATE AND REASONS FOR CONTESTING A WILL? 74% of family provision claims by family (children or partners, including ex-partners) were successful. Most wills are contested under family provision legislation.