Want to challenge a will?
What claim can you make?
The compensation you may receive from an estate dispute depends on the specific circumstances of your case, the nature of the dispute, the number of potential beneficiaries and the size of the estate.
So what are your chances of winning your case?
The chances of winning a will dispute depends on several factors, including the strength of the evidence and the legal arguments in your favour.
It is difficult to determine the chances of winning a case without a thorough consideration of all the relevant facts and circumstances.
What fees are involved?
The fees involved will depend on the particular circumstances of the will/estate dispute. We will have an initial confidential, no obligation discussion with you to discuss your claim options. At that time we will discuss the likely costs associated with making a claim. If you choose not to proceed with a claim after that discussion, there will be no cost to you. We understand that many clients are unable to pay legal fees during the claim process and so we are often willing to defer payment of our fees until the conclusion of the claim. There's no cost to reach out and have an initial chat about your case.
How long does the process take? What’s involved?
The length of time it takes to resolve a will dispute can vary depending on the complexity of the case, the willingness of the parties to negotiate a resolution and the availability of the courts to hear your claim. Some simple estate disputes may be resolved within a few months, while more complex cases can take years to resolve. Additionally, the discovery process, the time needed to gather evidence, and the scheduling of court appearances can also impact the length of time it takes to resolve a case.
- Have an initial chat over the phone or in person to take instructions from you regarding the basis for the dispute.
- Obtain a copy of any will and/or other relevant documents relating to the deceased’s testamentary wishes (and if applicable at the time, obtain any probate or administration documents).
- Provide notice of the claim against the estate to the executor and any interested parties.
- Obtain details of the assets.
- Obtain evidence to be relied upon.
- Put forward an offer of settlement to commence settlement negotiations.
- Lodge documents in Court to protect the claim and attend any Mediation scheduled.
When can a claim be made?
If you consider sufficient provision was not made for you under a will or that a document is incorrectly being purported to be the final will of a person, you may be able to contest the will.
Legislation restricts who is entitled to contest a will. It is important that you seek legal advice regarding whether you are entitled to contest a will and on what basis that claim should be made as early as possible as strict time limits apply to contesting a will. A claim must be notified to the executor and filed in court within 6 months of a grant of probate.
MKF Lawyers can provide advice regarding whether a will can be contested and provide advice regarding the best approach to protect your entitlements prior to the distribution of an estate occurring. You should contact us urgently if:
- Provision was not made for you in the deceased’s will, but you were dependent on the deceased prior to their death.
- If you have special needs that require greater provision than was made for you in the deceased’s will.
- You consider the provisions made under the will to be unfair.
- You do not believe the deceased had capacity at the time of making the will.
- You consider the deceased was unduly influenced by a beneficiary recorded in the will.
- You have been named as an executor and you consider a person has been unfairly left out of the will.
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Frequently Asked Questions
Who will pay the legal costs when a will is disputed?
Usually, legal costs incurred by a person contesting a will are paid from the assets of the estate.
Who can make a claim?
For inheritance claims, only persons that are considered close relatives of the deceased are entitled to make a claim. This may include:
- A spouse or domestic partner (including a former spouse or domestic partner).
- Children (this may include step children).
- Parent (if certain criteria are met).
- Siblings (if certain criteria are met).
Do all will disputes go to trial?
While it is likely that you will need to lodge documents in court to protect your entitlements, this does not mean that the matter will run to a trial hearing. A negotiated settlement may instead be reached. Every matter will be different. We will require details about your particular matter to advise how long it may take to resolve and whether a negotiated settlement is possible.
Can I still contest a will if probate has been granted?
You can still contest a will if probate has been granted. It is necessary for you to lodge an application with the Supreme Court of South Australia within 6 months of a grant of probate being made to protect your entitlements. It is also necessary for you to notify the executor of your intention to contest a will within 6 months of probate being granted. It is possible to extend the timeframe for lodging an application to contest a Will in limited circumstances, but this should be avoided where possible so that you don’t miss your opportunity to make a claim.