Estate Litigation Checklist – Contesting a Will

Estate Litigation Checklist

There are a number of factors which are important and should be considered when contesting a Will.

In New South Wales, Queensland and Victoria, making a claim for provision from a deceased person’s estate is commonly referred to as contesting a Will or making a family provision claim. This differs from challenging the validity of a deceased person’s Will.

We have compiled a ten point checklist of the factors that you should bear in mind when contesting a Will. They are as follows:

1.  When did the deceased die?

There are limitation periods that need to be considered when contesting a Will. These differ from state to state.

In New South Wales you have 12 months from the date of death of a deceased person to contest their Will.

In Queensland you must give the executor notice that you intend to contest a Will within 6 months of the date of death of a deceased person and you must commence proceedings to contest a deceased person’s Will within 9 months of the date of death of the deceased.

In Victoria you have 6 months from the date that Probate is granted to contest a Will.

2.  Where did the deceased die?

You need to consider the place where the deceased died and where the deceased held assets. This will affect the state where you commence proceedings. For example, if the deceased died in New South Wales and held assets in New South Wales, you can commence proceedings to contest the deceased’s Will in New South Wales.

If the deceased died in Queensland however they resided in New South Wales and all of their assets were in New South Wales, you would also contest the Will in New South Wales (rather than in Queensland).

3.  What is the value of the estate?

You need to consider the size and nature of the deceased person’s estate. For example, is the estate large enough for provision to be made for you if you contest the Will?

In some matters, you may be eligible to contest the deceased’s Will and you may have a need for provision from the deceased’s estate, however the estate may not be large enough for a family provision order to be made for you.

4.  What is your relationship to the deceased?

Eligibility is an important criterion if you are contesting a Will. Not everyone is an eligible person.

Eligibility differs from state to state. For example, a step child is eligible to contest a Will in Queensland. However in New South Wales, a stepchild would only be eligible to contest a Will if they lived with the deceased and were dependent on the deceased at a particular point in time, and if there are factors warranting the making of the application.

Section 57 of the Succession Act 2006 (NSW) sets out the persons who are eligible to contest a Will in New South Wales.

In Queensland, section 41 of the Succession Act 1981 (QLD) refers to the persons who are eligible to contest a Will in Queensland.

Section 90 of the Administration and Probate Act 1958 (VIC) defines eligible persons for the purposes of contesting a Will in Victoria.

5.  Did the deceased have a Will and are you a beneficiary?

If the deceased left a Will, the Court will consider whether any provision has been made for you under that Will. You need to prove that you have not been adequately provided for your proper maintenance, education and advancement in life in the deceased’s Will.

The Court will consider the testamentary intentions of the deceased and may also consider whether the deceased made any statements about why you were (or were not) provided for in their Will.

6.  What are your financial and health circumstances?

The Court would look at your financial circumstances and your health circumstances to determine whether you have been adequately provided for in the deceased’s Will.

You must show that you have a need for provision or further provision from the deceased person’s estate, although you should note that the term ‘need’ does not appear in the legislation.

7.  Are there competing claimants?

The Court will also consider whether there are any other applicants or beneficiaries who are raising their financial resources as competing claimants. It is ultimately a balancing act for the Court, considering the size of the estate, your circumstances and the circumstances of the other competing claimants.

8.  What was your relationship with the deceased like?

Your relationship with the deceased is another relevant factor. If there has been estrangement (that is, a separation between two people) then you should deal with that estrangement at the first opportunity you have. For example, if you are the applicant, then details of the estrangement, such as who caused it, should be included in the first affidavit that you file with the Court.

9.  Was provision made for you during the deceased’s lifetime?

Whether the deceased provided for you during his or her lifetime is another factor that the Court may consider when determining whether to make a family provision order in your favour.

10.  Did you contribute to the deceased’s estate and welfare during the deceased’s lifetime?

Further, whether you contributed to the accumulation of the deceased’s estate or welfare during the deceased’s lifetime, is also something that the Court may take into account.

If you have any questions about contesting the Will of a deceased person, please contact de Groots wills and estate lawyers by telephone on (02) 9101 7000 or visit our website to get started online. Our experienced team of lawyers are ready to assist you with your estate litigation enquiries.

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