How Long Does It Take to Contest a Will, and What Is the Cost?
One of the most emotionally difficult times we face in life is when a loved one passes away. Knowing the right way to proceed when there are issues concerning the deceased's estate can make things even more difficult.
In Queensland, the law recognises many reasons why a person may dispute a will. You may be able to dispute a will if you believe that you have been inadequately provided for or unfairly treated in the division of an estate's assets, or if you question the legitimacy of a deceased loved one's will.
As experienced succession law professionals, Bradley & Bray have put together this brief guide on the process of estate disputes and the costs involved.
What is the process if I want to contest or challenge a will?
There are two means to contesting or challenging a will:
1. Challenging the validity of the will
In the case where you feel that:
a will was fraudulent, fake or forged;
a will was made under undue influence;
the will-maker didn't have sound mental capacity to make the will,
you can challenge the will by filing a probate caveat in Queensland's Supreme Court.
As a general rule, anyone who holds an interest in the deceased estate can challenge the validity of a will, however, this won't automatically make them eligible to contest the will in court.
2. Contesting the will via a family provision claim
The other process for contesting a will in Queensland is via a family provision claim. Family provision claims allow eligible persons to claim that they were not adequately provided for in the will and seek further provision (such as an inheritance or entitlement to some of the estate assets or an increase in their inheritance).
You must be an eligible person by law before you're able to contest a will in Queensland. Having a close personal relationship doesn't always afford you the right to contest a will. In Queensland, you must be:
a spouse of the deceased;
a child of the deceased; or
a dependant of the deceased.
The Succession Act 1981 (QLD) clearly defines each of these types of relationships. For example, “spouse” includes a de facto partner or Civil Partner and “child” includes a step-child of the deceased.
The time limit for contesting wills in Queensland
Before you're able to lodge a family provision claim, you must provide the executor of the will with notice that you intend to contest the will. Notice must be provided in a written document and be given within six months of the date of death. The claimant (the person making the claim) then only has nine months from the date of death to file their application for family provision in court.
There is no defined timeframe for lodging a probate caveat but in order for it to be effective it should be lodged before any application is lodged for Probate or Letters of Administration with the will which you are challenging.
For these reasons, it's essential to act quickly if you're considering contesting a will — with so much to work through when a loved one passes away, time can easily slip away.
Are court hearings always necessary?
The vast majority of cases involving family provision claims are settled through the mediation process required by the Court Rules. Mediation allows all parties involved to arrive at a settlement agreement without a court hearing.
It can also take anywhere from 12 - 24 months before the Court hears your case. Most people grieving want the process to be over sooner rather than later, which is why legal representation at mediation can assist in a successful outcome sooner.
What are the legal fees for contesting a will?
As you may have concluded, commencing court proceedings and engaging dispute lawyers does mean that you incur expenses such as legal fees, a filing fee, court fees, and more.
Most lawyers will operate under a no win, no fee arrangement, however, fees vary between law firms. These fee agreements work well for those that may not be in the financial position to cover full legal costs, however, there may be some unavoidable disbursements throughout the process.
Before initiating legal proceedings, it's important to understand that if your case is heard in court, and you are the losing party, you may be required to cover the other party's costs in addition to your disbursements with your own lawyers.
Where to go for estate planning and will dispute assistance
We recommend you seek legal advice when writing up your estate planning documents in order to ensure that you have a valid will and that your family members are adequately provided for. There are always complex factors to consider, and these are not always able to be worked through alone.
Bradley & Bray are leading wills, estate and succession lawyers on the Sunshine Coast — let us help you protect your loved ones in the way they deserve or help you through the process of administering a deceased estate, including disputing a will and the probate process.
This article is general in nature and does not constitute legal advice. If you require legal advice in relation to your personal circumstances, you must formally engage our firm, or another firm to provide legal advice in relation to your matter. Bradley & Bray lawyers takes no responsibility for any use of the information provided in this article.
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