Contesting a will and deceased estates 

 

Making a claim for provision from a deceased estate:

A deceased person (testator) is entitled to leave his/her property (deceased estate) to whoever he/she wishes. However, the law in Australia provides a limited opportunity (depending upon their circumstances) to contest a will.

Certain persons may apply to a Court for an order for provision (challenge a will) from the deceased's estate (sometimes referred to as family provision claim).

Who can make a challenged will claim against a deceased estate in Court?

When is the will dispute claim on a deceased estate made?

The will dispute application should be made to the court fairly soon after death, and before the assets in the deceased estate are distributed to the various beneficiaries in accordance with the will. In New South Wales the period in which a claim to challenge a will must be made is 12 months if the deceased died on or after 1st March 2009. If the deceased died before that date the period to contest a will is 18 months. The contested will period varies in other states in Australia. It is sometimes possible to commence will challenge proceedings even if the period has expired, depending upon the circumstances. For instance, the person seeking to make a disputed will claim, may not even have been aware that the deceased person had died, until sometime well after death.

Legal Costs in Disputing a Will

If successful, and depending upon the size of the estate, most of the disputed will applicant's legal costs are generally paid from the deceased estate.

Defending a challenged will claim on a deceased estate if you are an executor of the deceased estate

It is the duty of the executor of a deceased estate to uphold the last will and testament.

The law recognizes the right of a deceased person to dispose of property in their will as they wish. It is the duty of the executor nominated under the will to uphold the will, but subject to any reasonable claims for provision made by eligible persons who may challenge the will.