Can I Contest My Father’s Will?
I wish to contest my father’s Will. I am unsure how to go about this. Will I have to go to Court? And will I have to pay court costs and legal fees?
The two main questions that need to be considered when Contesting a Will are:
(a) Am I an eligible person to Contest as defined in the Succession Act? and
(b) Did the deceased fail to to make adequate provision for my proper maintenance, education and advancement in life?
The Succession Act sets out the people who are eligible to Contest a Will including:
– A spouse or de facto partner of the deceased;
– An ex spouse or de facto partner of the deceased;
– A child of the deceased;
– A grandchild of the deceased if they were dependent on the deceased and part of their household; and
– A person in a close personal relationship with the deceased.
As you are a child of the deceased you are an eligible person to make a family provision claim.
The next question that needs to be answered is whether the deceased made adequate provision for you in his Will. This includes considering your needs such as medical issues, future employment prospects, your dependants and your current financial situation. The Court will also consider the size of the Estate and the claims and needs of the other beneficiaries of the Estate. One further thing that the Court will consider is whether there has been any disentitling behaviour between you and your father such as a long estrangement.
The first step if you are considering Contesting a Will, is to obtain expert legal advice on your prospects of success. At the Northern Beaches Lawyers consultations are available with our expert Wills and Estate lawyers to discuss your circumstances and whether you have a good case before making a decision to proceed to contest a Will.
The majority of Contested Wills do not proceed to court hearing, but rather settle at mediation between the parties. This is to avoid the imposition of unnecessary legal fees being incurred by the Estate, as well as a recognition by Executors of legitimate claims on a deceased Estate. The Court itself will give directions to encourage the early resolution of the proceedings and this includes referring the matter to mediation.
Whether you will be required to pay court costs and legal fees will depend on the outcome of your claim. Generally, legal fees will be paid by the Estate, unless the claim is deemed to be frivolous or vexatious. However, the Northern Beaches Lawyer operates on a “No Win No Fee” basis for contesting a Will.
Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide and advise you if you are considering Contesting a Will. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice call The Northern Beaches Lawyer today on 9221 0341 or email firstname.lastname@example.org
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