A will is a legal document that bears the testator’s intent and wishes on how their estate, including every asset and property they have sole ownership of, should be shared upon their demise. Here is a Step by Step Guide to Contest a Will in Victoria [Video]
The people he will describe to inherit these assets and properties are often called “the beneficiaries.” The document’s aim is usually to ensure that the properties are distributed orderly and peacefully without causing drama amongst the beneficiaries.
This is intended to ensure peace, provide for those involved and help them get through the grieving period.
However, a lot of things can go wrong. For instance, a beneficiary can be named in a previous Will and be removed in a new one.
The testator may also write the Will while being incapacitated or under undue influence. Or a beneficiary may feel they are getting less than their share of the inheritance.
This can therefore lead to disputes that can further cause a contesting of the Will. So if you are a partner, a child, a grandchild, a relative, or a dependent of a testator who lived and own assets in Victoria and you feel you are not getting what you deserved in Will, then follow these steps to learn how to contest a Will in Victoria.
Who is Eligible to Contest a Will?
A Will, as described above, covers for the wellbeing of anyone dependent on the testator during their lifetime and at their time of death.
However, there is still a need to explicitly define who is eligible to contest a Will in Victoria. It used to be very flexible to make claims against a Will as the criteria for eligibility were not specified.
And anyone even remotely related to the testator could contest a Will if they felt they need to be included or felt cheated even though they are included in the Will.
All that ended after new legislation came into effect on 1 January 2015. In this provision, there are clear conditions for who can contest a standing Will.
Those eligible to contest a Will include the spouse or domestic partner of the deceased at the time of death, a child or grandchild, a former spouse or domestic partner of the testator at the time of death, and a registered career.
The following categories are eligible to contest a Will:
- A spouse or domestic partner of the testator at the time of death
- A natural child, an adopted child, or a stepchild who believed the deceased to be their parent and was treated as such and who at the time of death was under the age of 18, a full-time student under the age of 25, suffering from a disability
- A child, a stepchild, an adopted child or a “believing child” not listed above (i.e. not an adult)
- A former spouse or former domestic partner of the testator
- A registered caring partner of the testator
- A grandchild
- A spouse or domestic partner of a child of the testator (i.e. a son or daughter-in-law) where that child has died within one year of the testator’s death
- A person who was, had been, or was likely to be in the near future a member of the testator’s household at the time of death.
Who Pays Legal Costs When Contesting a Will?
The cost of contesting a will generally differ for several reasons. However, the average cost of contesting a Will stands around between $5,000 – $10,000 if the matter does not get to court.
Whereas, if the matter goes to court, the cost could be anything between $20,000 -$100,000.
The cost of contesting a Will is usually borne by you as the claimant, even though a win could mean the estate will reimburse you.
However, this is not as straightforward. For instance, when the matter is resolved through a mediation process, you will receive an agreed-upon amount from the estate from which you will pay 100% of the legal fees.
If the claim gets to court because it couldn’t be settled through mediation and you win the case, the court will rule that the estate pays 70% of the legal fees while you take care of the rest out of your share of the estate.
On the other hand, if you lose the case in court, then you will pay 100% of the legal fees or nothing at all if you were able to settle on a “no win no fee” basis with your solicitors.
Hence, several people tend to resolve their contest of a Will through mediation as it is less expensive, costing an average of $30,000 in all.
Therefore, it is advisable to confirm whether winning the contest could be more financially favorable before even establishing a claim.
This means you need first to be sure how much the estate is worth and how much you would gain as your share once the other factors are considered.
How Hard is it To Contest a Will?
When implemented properly, A Will aims to provide an easy, clear-cut way to resolve an otherwise delicate issue.
However, every very often, we see claimant’s rise to contest a Will for any of the following reasons:
- If the testamentary capacity is in question
Adults older than the age of 18 are usually allowed to make a legal Will that must be honoured and respected. Testamentary capacity is often what gives adults the legal power to create Wills.
A Will can therefore be contested if this testamentary capacity is in doubt. The contest can be based on any or all of the following:
- The testator did not understand the extent and value of their estate
- If the testator did not understand who their heir or beneficiaries are
- If the testator did not understand the effect of creating a Will
- If the testator lacks the mental capacity to make a Will
- Insufficient and inappropriate witnesses
A problem with how the Will was witnessed can also form a basis for establishing a contest. For instance, if the claimant can prove that that signature does not belong to the testator or that the signature was made in the absence of two witnesses, then a case can be made and possibly won.
- If there is Will Fraud or forgery
A Will fraud is a common reason why people contest a Will. If the heir or beneficiaries can sufficiently prove that the Will was signed under the guise of a different document, then that Will can be contested.
For instance, if the testator signed the Will thinking it was a healthcare proxy or a contract for a Real Estate or another business.
- If there is a new will
The existence of two different Wills can lead to a legal contest. Legally, the new Will is always binding while the old Will is considered void and often destroyed. But in instances where both Will still exists as at the time of death or probate, a claimant can contest the old Will if an executor tries to carry out the wishes and instructions stated within it.
While all or any of the above reasons can form the basis for a claim, winning the case through a mediation process is most often considered the best option as winning a contest in a court can be based on several factors, including the following:
- The relationship that existed between the claimant and the testator at the time of death
- Whether or not the deceased owns the applicant any financial obligations
- The value of the estate, including the assets and properties the testator has sole ownership of
- The claimant’s financial situation, including all current and future financial needs
- The mental and physical health of the applicant
- Whether the applicant was financially dependent on the deceased at the time of death
- The character, conduct, and lifestyle of the claimant
- If others are contesting the same Will
How to Contest a Will in Victoria
The time to contest a Will is usually 12 months from the date of death of the testator and 6 months from the date of the probate.
It is often advisable that you make your claims between this period and before the estate is distributed to have a better chance of winning the case.
An estate cannot be disturbed after distribution, so you will need to make your claims early or make peace with the allocation.
The steps to contesting a Will generally differ according to the jurisdictions. However, below are the common and most basic steps:
Step 1: Establish that you are named in the Will
Your first action would be to make sure you are named as a beneficiary in the Will. Then find out the value of the estate and how much your allotted share should be.
Step 2: Involve your lawyers.
It is always advisable that you involve your lawyers as soon as you have any concerns. This could be as early as when you are trying to determine if you are named in the Will, even before probate and before you get a copy of the Will.
Getting your lawyer involved does not necessarily mean you will be taking the matter to court, but you will get the right legal advice and enter your claims early enough.
Step 3: Wait for probate.
You will be granted a copy of the Will after probate. Then you can be sure whether to accept or contest the Will.
Step 4: Enter a contest.
Should you be dissatisfied with the Will, you can make your claims and contest. Usually, your lawyer will try to arrange for your claims to be resolved through a mediation process.
If you are successful and the right negotiations are stuck, you can shake hands with your lawyer, settle them and go on to enjoy your inheritance.
However, if the mediation fails, you may then proceed to court.
Step 5: Take the matter to court
This is often the final step in a Will contest. In most cases, the court will uphold a Will and allow it to stand. However, there have also been times when people contested a Will and won.
A Will is the last wish of the testator and is a legal document that isn’t often easy to overrun. If a Will is presumed valid by the probate court and meets all the state’s requirements, it makes it even harder to be tossed aside.
Tempers rise, and sparks fly when a Will is contested, and all of these can be eased cheaply and quickly when the contest is resolved through a mediation process. However, the contest becomes underlined by several factors if it gets to court.
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