The death of a loved one is difficult for everyone. However, it can become even more stressful if you feel like you have been unfairly provided for in the Will of the deceased person or left out entirely. In such situations, and if you are an eligible person, you may wish to consider contesting a Will.
But what is the success rate of contesting a Will and what grounds do you need to contest a Will? Keep reading, or speak to one of our Will and estate lawyers at Owen Hodge today.
The success rate of contesting a Will in NSW
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 best way to ascertain if you have a chance at success is to bring your questions and your evidence to a Will and estate lawyer to be properly evaluated. After having done so, you will have a better idea of your chances in changing the distribution of the estate in the Will.
Are you eligible to contest a Will?
The biggest factor that impacts the success rate of contesting a Will is if the person has the right to do so. To be eligible to contest a Will, you must be one of the following:
- A person who was previously named in the Will but then removed
- A current beneficiary
- A person who would be entitled to take under the law if the Will did not exist
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If you fall within one of these categories of persons, then you still must make a personal decision as to whether it is worth your while to bring a claim contesting the Will and its distributions.
How long does contesting a Will take?
It is difficult to provide a timeframe for contesting a Will, as each Will is unique and different, much like the individuals who made the Will. Your lawyer will be able to provide you with an overview of how long the process should take, as well as the steps they are taking during this time.
Is it worth contesting a Will?
This is a very personal and often difficult question to answer. It is important to be clear about why you might choose to contest a Will. The court will want you to present evidence to support your claim that the Will was either invalid or that you should have been included as a beneficiary.
What grounds do you need to contest a Will?
You must have evidence including, but not limited to:
- Invalidity: proof that the Will, itself, is not valid
- The deceased was influenced by another person (undue influence): meaning the Will did not reflect the true desires of the deceased
- The deceased did not have the mental/testamentary capacity and/or understanding to create a Will: meaning the deceased was not of sound mind at the time the Will was drafted and signed
- The Will is fraudulent: meaning the deceased was not the creator or signer of the Will
Family provision claims
Another ground for contesting a Will is if a financially dependent relationship existed between yourself and the deceased and you have not received adequate provision. Proof of this can include:
- The nature of the relationship between the deceased and the applicant; this could be a parent/child relationship, a de facto relationship, a financial dependence between friend and/or those sharing living quarters
- The dependency of the applicant on the deceased for financial needs; housing, food, medical care, daily living expenses, education
- The ability of the contester to financially care for themselves in light of their age and/or circumstances; minor children, elderly parents or a disabled sibling or friend
- The past and future ability of the applicant to financially care for themselves in the event that the support of the deceased is discontinued as intended by the Will
Learn more:Â family provision claims
The process of contesting a Will
What happens if a Will is challenged, and is it easy to contest a Will? Even if you are able to prove one or some of the above stated reasons for finding a Will invalid, it will not be easy getting the beneficiaries to agree to changing the distribution of the Will. It is highly likely you will have to file a claim with the Court to even begin the process of consideration. Therefore, you will need to be ready to take the following steps:
- Seek the advice of a lawyer; bring all of the evidence and information you have available to support your claim to your first meeting so that the solicitor can determine if the case is legally supportable.
- You will be required to participate in mediation with the beneficiaries and the Trustee of the Will.
- If you cannot come to an understanding that satisfies both yourself as the contester and the beneficiaries, you will have to take the claim before the Court.
- There are no guarantees that the Court will side with you even if you have evidence and are telling the truth.
- Accept that if your claim fails, it is very possible the Court will deem you responsible for the legal costs associated with bringing the claim.
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How long do I have to make a claim against a Will?
The time frame available to New South Wales residents when contesting a Will is 12 months from the date of death. Therefore, if you are considering taking action against a Will that you believe to be invalid, or if you believe you have been unfairly or illegally left out as a beneficiary, it is important to begin the process as soon as possible.
Learn more:Â Contesting a Will time limit
If you find yourself in need of assistance with contesting a Will of a deceased family member/spouse, please contact the law offices of Owen Hodge Lawyers. We are always happy to assist clients in understanding the full ramifications of any and all of your legal needs, and can help you determine the success rate of contesting a Will. Please feel free to call the Owen Hodge law firm at your earliest convenience to schedule a consultation at 1800 770 780