Question 1

Can family members challenge a will?

Accepted Answer

If a person believes they were unfairly treated in a will, they can start a legal process called "testator's family maintenance" in the Supreme Court. To be eligible to make a claim, the person must be closely related to the deceased. This includes a spouse, domestic partner, parent, child, stepchild, or someone treated as a child by the will-maker. Registered carers, members of the household, or grandchildren may also be eligible if they can show dependence on the will-maker.

The court considers several factors when determining a claim, such as the Will and the circumstances of its creation, whether the deceased had a "moral duty" to provide for the applicant, and the relationship between the applicant and the deceased. The court also takes into account the impact of a change on other beneficiaries named in the will. The applicant must file the claim within six months of probate or letters of administration being granted. While the process may be emotionally challenging, it can have significant long-term benefits for the applicant.

Question 2

Is contesting a will worth it?

Accepted Answer

Challenging a will can be a valuable investment of time if you feel that you have been unfairly treated and are entitled to a greater share of the estate. While it can be emotionally taxing, it is crucial to keep in mind that contesting a will can have significant long-term advantages.

Question 3

What is the time frame for contesting a will in Victoria?

Accepted Answer

If you believe you have been unfairly treated or left out of a will, it's important to note that the time limit to contest a will is generally 6 months from the date probate is granted. However, there are certain circumstances where this time limit may be extended. If you wish to make a claim outside of the 6-month period, you must seek approval from the Supreme Court and demonstrate that the delay in making your claim is justified and will not prejudice the estate.

It's important to note that if you are contesting a will on the basis of lack of capacity or undue influence, you must make your claim before probate is granted. Our team of experienced solicitors can help guide you through the legal process of challenging a Will and ensure that your rights are protected.

Question 4

Who pays to contest a will?

Accepted Answer

When making a claim against a deceased estate, the claimant is responsible for their own legal costs, while the executor or administrator of the estate is not liable for defending the estate. To encourage personal representatives to accept their responsibility, courts indemnify them from reasonable costs incurred during their work. Instead, the estate itself bears the costs and may also need to reimburse the claimant for their expenses.

In Victoria, the Supreme Court has the power to award costs to the plaintiff and/or defendant in civil litigation under the Civil Procedure Act 2010. The court usually makes an order as to costs after the conclusion of litigation, in a fixed amount, a certain percentage, or an amount to be assessed later.

Although costs in civil litigation usually "follow the event," meaning the losing party pays the winning party's litigation expenses, contested will cases are treated differently for several reasons. The court considers TFM claims to be unique, and therefore costs should be awarded in a fair manner. The just outcome depends on the reasonableness of the claim, the conduct of the parties, and the financial impact of costs on both parties. This means that even if the plaintiff is unsuccessful, they may not have to pay adverse costs, and they may even have their own costs reimbursed if the litigation was reasonable.

The court has discretion to make an adverse cost order, particularly if one party has caused unnecessary delay or acted unreasonably in resolving the dispute. To limit the costs of contesting a will in Victoria, the claimant should try to negotiate an agreement with the executor of the estate before the trial. If an agreement can be reached pre-trial, both parties can avoid the high costs of litigation. The court may order adverse costs against a party that was unwilling to make a reasonable attempt to compromise before court. An experienced contested wills solicitor from Curwen Walker Lawyers can help a claimant resolve their claim at an early stage or at pre-trial mediation to avoid a hearing altogether.

Question 5

How much does it cost to contest a will?

Accepted Answer

Curwen Walker Lawyers can provide you with an estimate of costs for your family provision case, which can vary depending on several factors. These include whether you have agreed to a fixed quote or an estimate of fees, the hourly rate agreed upon, and the level of experience of your solicitor in family provision matters.

While a fixed quote can provide more certainty in costs, an estimate may be more appropriate in complex cases. Hourly rates can also vary depending on experience, with rates typically ranging from $350 to $550 per hour. It is important to note that experience can significantly impact the outcome of your case.

At Curwen Walker Lawyers, our experienced family provision lawyers can guide you through the legal process and provide expert advice tailored to your individual circumstances. We are committed to achieving a successful outcome for our clients while being transparent about costs and ensuring that they receive the best value for their investment. Contact us today to discuss your case and receive expert guidance from our team.

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