Contesting a Will Before or After Probate Is Granted

When a family member or a loved one passes away, the people they leave behind – especially the ones they were close to – experience considerable distress and turmoil. But the mourning period can become even more stressful when disputes arise over the estate and the deceased’s last will and testament is contested.

Contesting a Will usually happens when some people feel that they have been left out of a Will as a Beneficiary. Others feel they are not getting enough of what they believe they should have as their share. And when there are several parties interested in the estate of the deceased, these issues can lead to a lot of friction among themselves.

If your deceased relative’s estate is being contested and you have your own interests to protect, or if you are one of the contesting parties, this guide is designed to help you. By providing a detailed account of how a Will may be contested and which people may do the contesting, you’ll be better able to understand and navigate this complicated process.

1. Contesting a Will

Can a last will and testament be contested? Our short answer is: Yes, it can be contested subject to certain legal conditions. But before moving on, there are a few things we need to clarify.

Some people confuse contesting a Will with challenging a Will, so first things first: contesting a Will is different from challenging a Will.

• Contesting happens when certain interested parties are left out of a Will or when they feel they have been unfairly treated in a Will.
• Challenging a Will involves disputing the validity of a Will or seeking to have the Will of the deceased struck out completely.

So, for the purposes of limiting this discussion, the focus of this guide is contesting a Will. Moreover, this guide covers:

• Contesting a Will in WA
• Contesting a Will in NSW
• Contesting a Will in Victoria
• Contesting a Will in Queensland

2. What are the Grounds for Contesting a Will?

Contesting a Will is also referred to as a ‘family provision claim.’

In this case, the interested parties agree that there is a valid Will. One basis for contesting a Will is built on the allegation made by one or more interested parties. These beneficiaries of the estate may think they have not been properly or fairly provided for from the deceased’s estate.

Those contesting a Will may argue that they are receiving inadequate financial support. This means the estate has failed to address certain provisions, such as education and general living expenses.

Another reason to contest a Will is when a supposed Beneficiary has been omitted or left out of the Will totally.

3. Who can Contest a Will?

Can a Beneficiary contest a Will? Can a sibling contest a Will? Can you contest a Will if you’re not in it? Can a non-family member contest a Will?

These are just a few of the many questions people have when it comes to contesting a Will.

Whether or not you are family, and even if you think you have the right to be included in a Will or question the provisions therein, you need to know with certainty who can contest a Will.

In Australia, this varies from state to state as listed in the below four sections. Nonetheless, some general requirements in contesting a Will include:

• The deceased must be domiciled in the state or jurisdiction where the claim is being filed.
• The deceased must have assets in the state or jurisdiction where the claim is being filed.

Since each state or jurisdiction in Australia has its own provisions concerning who can contest a Will, you need to know these details with certainty beforehand. This way, you can spare yourself the expense, time and effort needed to facilitate this process. You’ll also be saving yourself from unnecessary anguish if it turns out you can’t legally contest a Will.

3.1 Who can Contest a Will in Western Australia (WA)?

• Husband or wife; de facto partner
• Former spouse or de-facto partner if being maintained by the deceased at the time of the latter’s death
• Children
• Grandchildren living with or being maintained by their parent who was a child of the deceased
• Stepchildren who were being maintained by the deceased
• Parents of the deceased

3.2 Who can Contest a Will in New South Wales (NSW)?

• Husband, wife, spouse or former spouse
• Anyone in a de-facto relationship with the deceased at the time of the latter’s death
• Children, grandchildren, dependents
• People with a close personal relationship with the deceased

NOTE: A parent, sibling, step-child and former de-facto spouse are not typically considered eligible persons. However, such persons may be eligible if they lived with and were dependent on the deceased.

3.3 Who can Contest a Will in Victoria (VIC)?

• Husband, wife, spouse, de-facto or former spouse
• Children, stepchildren, adopted children or individuals who believe the deceased was their parent, grandchildren
• A person who was a member of the deceased’s household at the time of the latter’s death
• A carer, if they are in a “registered caring relationship” with the deceased as defined under the Family Law Act 1975 

NOTE: Those not expressly listed here may be eligible if the deceased had a responsibility to provide for such people.

3.4 Who can Contest a Will in Queensland (QLD)?

• Husband or wife or spouse
• Children, stepchildren
• Parents of the deceased if they were dependent on their child at the time of the latter’s death
• A dependent supported by the deceased at the time of the latter’s death

4 What is Probate?

Probate refers to the legal process of validating the Will of a deceased person for their wishes to be carried out. The person named in the Will to be responsible for administering the deceased person’s estate is called an ‘Executor.’ The task of the Executor is to ensure debts are paid and the remaining assets are distributed to Beneficiaries mentioned in the Will.

When a court awards a ‘Grant of Probate,’ it officially recognises the validity of the Will, as well as the named Executor responsible for the disposition of the deceased’s estate.

Probate may be necessary when the deceased leaves behind specific types of assets, particularly money that is above a certain amount, real estate, a large number of shares, a sizeable estate or if the Will is being contested.

5. Contesting a Will Before Probate

If you’re wondering about how long after the death can a Will be contested and whether there is a time limit to contest a Will, you’re on the right track.

In case you are the Executor, one of the Beneficiaries named in a Will or someone interested in contesting a Will, you need to know you’re acting in accordance with prevailing inheritance laws. Especially if you have questions about the provisions of a Will pertaining to you, it’s crucial to know when a Will can be contested.

After all, the time allowed to contest a Will usually differs from state to state. In fact, even the timing when the limit starts varies as well.

5.1 Contesting a Will in New South Wales (NSW)

In New South Wales, there is also a time limit for contesting a Will or applying the law on family provision.

If the deceased person or testator died after 1 March 2009, a family provision claim must be filed within 12 months from the date of death (pursuant to Succession Act 2006, s 58(2)). In cases where the time of death is uncertain, it is up to the court to determine a reasonable estimate of the date or time of death (pursuant to Succession Act 2006 s 97 and Family Provision Act 1982, s 16(5)).

In case your application for family provision is made over 12 months after the death of the testator, you are required to prove ‘sufficient cause’ to the court. If you are able to show ‘sufficient justification,’ the court can, at its sole discretion, give you an extension of time for contesting the Will.

There may be instances when the Executor in charge of the estate may be open to making an agreement to settle your claim at an earlier stage, so there’s no need for legal proceedings to commence in court. If you think there is a distinct possibility of this happening with your claim, you should contact a lawyer who will prepare your case for an early negotiation and possible mediation.

Probate Lawyers in Sydney – NSW

5.2 Contesting a Will in Queensland (QLD)

In general, a testator (the deceased person who has left a Will or legacy) has the freedom to leave their estate or possessions and money to anyone or any cause, organisation or charity they choose.

However, if the deceased’s close relatives (family) or dependents will suffer hardship because of the deceased’s decision to leave the entirety or part of their estate, money or property to others, a family member or dependent may contest the Will of the deceased.

In Queensland, the Succession Act of 1981 (Qld) (Succession Act) grants courts the power to award family members or dependents a portion of the deceased’s estate. The courts can do this even though no provision or if an inadequate provision was made for them in the Will by the deceased (ss 40–44 Succession Act).

Also, contesting a Will or family provision applications may be brought even if the deceased died intestate (without a Will). However, such occurrences are rare.

If you want to contest a Will in Queensland, you have six months from the date of death to notify the Executor of a claim and another three months to lodge the claim in court. This is in accordance to the Succession Act of 1981 (ss 41(8) and 44(3)) where the time limit for making a claim is within 9 months of the date of death, that is, as long as the estate has not yet been distributed at the time the claim is filed and received by the Executor.

However, there may be cases when you may be permitted to file an “out of time” application. The decision here is completely left for the court to decide. The court may consider certain mitigating factors, like the duration of the delay, the reason behind the delay and whether the estate has already been distributed.

But, as with all matters pertaining to inheritance and estate administration, time is of the essence.

So, the earlier you find out what your prospects are from a trusted legal advisor, the better.

Probate Lawyers in Brisbane – QLD

6. Contesting a Will After Probate

In general, contesting a Will after Probate has been granted is possible in most states. However, you need to remember that once the estate has already been distributed, it would be more difficult to make a claim in your favour for obvious reasons. Assets can be difficult to find and collect if you wait too long. Moreover, the original Beneficiaries are going to be very upset or irate, so you may be in for a long fight.

Therefore, it falls on you and your lawyer to ensure you keep within the mandated time limits of contesting a Will after Probate.

6.1 Contesting a Will in Western Australia (WA)

Once the court has granted Probate in Western Australia, any applications that contest the contents of a Will must be filed within six months (pursuant to Family Provision Act 1972, s 7(2)(a)). The court will then make a decision in accordance with the law.

However, there are cases where it is recommended and appropriate for concerned parties to try to achieve a mediated outcome or settlement.

A mediated outcome is typically more flexible and customised compared to what a court may order. It is also usually cost-effective as it allows the parties to save on legal fees. It can also help resolve the dispute more efficiently – which is why more deceased estate disputes are being settled out of court.

You would do well to consult with a lawyer skilled and experienced in estate litigation. They can provide you with sound advice on strategies you can use to resolve the matter quickly and with minimum fuss.

Probate Lawyers in Perth – WA

6.2 Contesting a Will in Victoria (VIC)

In Victoria, you can only contest a Will after the court awards Grant of Probate or Letters of Administration in case the testator dies intestate (Section 99 of the Administration and Probate Act 1958). Here, if you are left without sufficient provision from a deceased estate, you may apply for a “Testators Family Maintenance Claim,” or TFM claim, within six months from a grant of Probate.

Although there may be a few cases where a person was allowed to dispute the estate after the six-month period following Probate has elapsed, this is a very rare occurrence. Therefore, if you are planning to make a claim, you must act swiftly. Otherwise, you run the risk of not giving yourself enough time to prepare.

You don’t even have to wait for Probate to start preparing your claim. The earlier you contact your solicitor, the better prepared you will be when you make a claim.

Probate Lawyers in Melbourne – VIC

7. How to Successfully Contest a Will

Want to know how to successfully contest a Will in Australia?

Contesting a Will may be necessary when you have good reason to believe that you have been unfairly treated or excluded in the deceased’s last will and testament. If you are firm in your belief and course of action, take into account the below considerations to increase your chances of winning a ‘Will contest.’

7.1 Consider a Negotiation

Even if your mind is set on contesting a Will in court, you may want to consider settling the dispute out of it –  as a mediation to try to settle will be required before appearing in court.

However, make sure you review the facts with your lawyer to help determine how you should pursue a settlement and what the best outcome looks like. If the offer seems much less than what you think you deserve, you also have to decide on whether it’s worth taking the matter to court or to take the best offer from the estate.

7.2 Gather the Right Evidence

Make sure you collect evidence that is relevant to your claim. For sure, you will need the advice of an experienced estate lawyer so you don’t waste your time gathering evidence that has no bearing or value to your claim.

For example, if you are a sibling of the deceased who also acted as their carer during their lifetime but have been given very little (or worse, left out of the Will entirely) in the Will, you need to provide proof that you were their dedicated carer. Proof of your role as carer may include sworn statements from the deceased’s physician or healthcare provider (and other similar witnesses), authorisation letters mentioning you acting on your deceased sibling’s behalf and so on.

You also need to submit a sound affidavit evidence that will not draw valid objections from the opposing barrister. Therefore, your lawyer needs to be involved in wording and scrutinising the content of your affidavit. This will help prevent the possibility of your affidavit drawing too many objections and becoming altered significantly by the judge.

When your affidavit raises valid objections, certain words, paragraphs or entire pages may be ordered by the judge to be stricken out. This can, of course, render the affidavit useless and may also weaken your claim.

8. Who Pays the Legal Costs When Contesting a Will?

Does it cost money to contest a Will? Is it expensive to contest a Will? Who pays if you contest a Will?

These are just some of the big financial questions people ask when it comes to contesting a Will.

The legal costs for Wills and estates cases can fall anywhere between $2,000 and $100,000 (or more) depending on the size of the estate and the length of the process.

The person making the claim would generally pay for their legal costs and the estate for theirs. If the case ended up in court, the decision as to who would shoulder the costs of contesting a Will would be made by the judge. If your claim were successful, parts of your expenses would likely be covered by the estate, whereby you may also reduce the total payout you could end up with due to legal fees needing to be paid by the estate. Of course, this also means that all Beneficiaries’ inheritance will likely be reduced.

However, if the claim is unsuccessful, it is usual for the court to order that the losing party shoulders the estate’s legal costs, as well as their own. In which case, the costs would have to be paid by the person making the claim.

9. Considerations Before Contesting a Will

To help make the decision if it’s worth contesting a Will, it is important to consider a few financial and legal factors, which include:

• the size of the estate and making sure the benefit of a successful claim outweighs the legal costs;
• getting your facts right by consulting a seasoned probate lawyer or solicitor to understand your rights to gain a better, more objective picture of the situation; and
• taking one step at a time and ask the lawyer for the prospects of your claim, to understand the chances of success, before spending more money and time.

Besides, the cost of contesting a Will does not only include money. You also need to factor in the emotional distress, effort and time required to do it. When you contest a Will, you also run the risk of creating rifts with other family members or people close to the deceased, as well as alienating yourself from those people.

So the question ultimately is: Is it worth it? We recommend discussing your claim to see where you stand.

10. Understand What it Takes to Contest a Will

Contesting a Will is an emotional, time-consuming and possibly expensive undertaking.

Before finalising your decision to pursue your claim, it’s best to do some research. Remember, asking is free and shopping around is good.

simplyEstate can help with your assessment and has a directory of experienced estate lawyers who are ready to assist you.