What is the Court process for Contesting a Will and is it Expensive? – There are a number of legal grounds available to Contest a Will, so the Court process and costs will vary depending on which legal ground is used.
Family Provision Claim Court process and costs – A Family Provision Claim is a claim made by an eligible person, that the deceased did not make adequate provision in their Will for their proper maintenance, education and advancement in life. If a Family Provision claim is successful the Court will make orders to vary the Will of the deceased to allow adequate provision to be made by providing or increasing the eligible person’s share in the deceased Estate.
The process for making a Family Provision Claim, is to make an application to the Supreme Court of New South Wales, within 12 months of the date of death of the deceased. Applications can be made outside this 12 month period, however you will need to provide satisfactory evidence to the Court, explaining the reasons for the delay in making the Application.
Once the Application has been filed in the Court, the Court will order the parties to attend mediation to attempt to settle the dispute without the need for a court hearing. The Court is focused on the early resolution of Family Provision Claims, as a way to minimise the costs of the proceedings, impacting on the quantum of the deceased Estate. It is important to note that a large majority of Family Provision Claims are resolved through mediation and never proceed to the costs of a court hearing.
If the matter is not resolved by mediation, then the Application will be set down for hearing before a Judge of the Supreme Court. If the Family Provision claim is successful, it is quite common for the costs of the person making the Family Provision claim to be paid out of the deceased’s Estate, meaning that the successful person will not incur any legal costs or expenses in challenging the Will.
Contesting an invalid Will process and costs – It is also possible to Contest a Will on the grounds that it is not a valid Will. This can be for a number of reasons such as; the Will not being properly witnessed, undue influence or the deceased lacking testamentary capacity at the time of making their Will.
Contesting an invalid Will also requires an Application to be made to the Supreme Court of New South Wales.
It is important to obtain expert legal advice on Contesting an invalid Will, to ensure that you understand the process as well as the costs that you may incur during the proceedings. An expert Wills and Estates Lawyer can ensure that your case is carefully considered and evidence gathered before taking the steps of making an Application to the Court.
Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide and advise you on Contesting a Wills.
Graeme offers a “No Win No Fee” policy, for Contesting a Will in a Family Provision Claim. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice, call The Northern Beaches Lawyer today for an appointment close to home on 9221 0341
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