Frequently Asked Questions
- Who can make a contested will claim against a deceased estate in Court?
- When is the will challenge on a deceased estate made?
- What are the costs involved in challenging a will?
- How do I defend a disputed will claim on a deceased estate if I am the executor of the deceased estate?
- In a will dispute/will challenge case, why can't I just use a solicitor, why do I need a barrister?
- If I use a barrister as well as a solicitor in a challenged will, won't it cost me more?
- What is the advantage to me having a barrister early in the contested will proceedings?
- Where is a will dispute/will challenge case dealt with?
Who can make a contested will claim against a deceased estate in Court?
- A surviving husband or wife of the deceased person can dispute a will.
- A person living in a de facto relationship with the deceased person at the time of their death can challenge a will.
- A child of the deceased person, including an adopted child may contest a will.
- A former (i.e. divorced) wife or husband of the deceased person can dispute a will.
- A person who was dependent upon the deceased person AND who is a grandchild of the deceased person, OR who was a member of the household of the deceased person can challenge a will.
- A person who was living in a close personal relationship with the deceased person at the time of death can contest a will.
When is the will challenge 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
What are the costs involved in challenging a will?
If successful, and depending upon the size of the estate, most of the applicant's legal costs are generally paid from the deceased estate.
How do I defend a disputed will claim on a deceased estate if I am the 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 (see above who can make a claim in Court) who may challenge the will.
In a will dispute/will challenge case, why can't I just use a solicitor, why do I need a barrister?
Most will dispute claims involve a barrister at some stage. The "other side" (the deceased estate) will almost certainly be represented by a barrister. The barrister has a considerably different role to that of the solicitor (see "What is a barrister?"). The barrister and solicitor work together as a team.
If I use a barrister as well as a solicitor in a challenged will, won't it cost me more?
Not necessarily, the barrister and solicitor have different roles. In any event most will dispute/ will challenge cases legal costs are paid from the estate (see: Legal Costs in Fees ).
What is the advantage to me having a barrister early in the contested will proceedings?
There are many advantages in having a barrister involved early on:
- The barrister can provide an opinion about the prospects of success of the case, and the gathering of evidence, and for the strategy to get the best outcome for you.
- You will have the opportunity to meet with and get to know the barrister at an early stage, rather than on the day of the mediation, or if the case does not settle out of court, the day of the court hearing.
Where is a will dispute/will challenge case dealt with?
In NSW matters relating to deceased estate are generally determined in the Supreme Court of NSW in Phillip Street, Sydney.