The success rate of contesting a Will depends on many factors and if you're an 'eligible person'. So it's important to consult an expert Wills and Estate Planning Lawyer. Our success rate for disputing a Will is 97%.
In New South Wales, the overall success rate of contesting a will is approximately the same as the national average, about 76 %. As mentioned, NSW also has the highest number of family provision claims in the country and is responsible for around 60 % of all contested estates.
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.
To successfully contest a will, a person must demonstrate financial need, and establish that in light of this need, the deceased should have made greater provision for them. As a result, the applicant's financial situation is of particular importance to the application, as is his or her relationship with the deceased.
Yes, if you ultimately succeed in proving that the will is invalid, then a will can be overturned after probate. But contesting a will at this stage is complicated, and you risk incurring expensive legal costs if the court finds in favour of the executors.
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.
The time limit is only 6 months from the date of issue of the grant of probate or grant of letters of administration. Given this very short time limit it is really important that legal advice is sought immediately in order to ensure the claim is made in time.
You should really only consider a legal contest as a last resort. In cases where it is not possible to resolve the situation within the family, your next step would be to seek advice from a solicitor who specialises in contentious probate.
It usually takes an executor from nine months to one year to administer an estate. This time starts from the date they begin administering the estate. More complicated estates can take longer.
The entire will or codicil can be thrown out. If there is an earlier will in existence, that will could be put into place instead. If there is no other will, assets could be distributed by the court according to state intestacy laws, rules applied to divide an estate when there is no will.
Whenever contesting a Will, if your claim proceeds to trial, the standard order is that the winning party has their reasonable costs paid by the losing party.
Solicitors' probate fees are usually calculated as between 2% to 5% of the value of the estate, plus VAT.
Generally speaking, in claims to challenge the validity of a Will, there is no time limit. However, if a person delays in bringing their claim then the court may hold that as a result of this delay the person is no longer entitled to bring the claim.
A no contest clause (also known as a forfeiture clause) is a clause in a Will which states that a beneficiary will forfeit their inheritance if they challenge the Will.
Making a claim on an estate when there is a Will
Any children, estranged or otherwise, are entitled to make a claim on their parents' estates if they feel that they have not been sufficiently provided for in the Will. To make a claim on someone's estate, you must apply to the Court.
It is possible to contest a will on the basis of a lack of knowledge and approval even if the will appears to be validly executed and the testator had mental capacity. It must be shown that the testator was not aware of the content of the will or that there were suspicious circumstances.
Unfair Will Example: Contributions
A will might also be unfair if it gives no consideration to the contributions that someone made to either the deceased estate or the welfare of the deceased and family.
There is a common misconception that, as a child, you are automatically entitled to receive something from your parents' estates. In fact, there is no legal obligation on a parent to provide for their child, or children, after they die and when they are making a will.
Contesting a Will is when you have been left out of Will, or feel you have been treated unfairly by the Testator within their Will. Therefore you launch a family provision claim. To challenge a Will is to dispute a Will, or to say that the Will itself should be struck out.
Contesting a Will on a no win, no fee basis can be done in many circumstances. It means that if the claim is not successful, the client will not need to pay any legal fees for trying to challenge the Will.
There are a number of different costs that might be involved when you contest a Will. These could include: Solicitor fees. Disbursements (such as the cost of copy medical records, Land Registry fees)
To ensure that the will remains unchallengeable, it must be certain in terms of its objects, as far as possible clearly identify the property to be bequeathed, and name the beneficiaries on whom the property will devolve upon the demise of the testator (i.e., the person making the will)."