Victoria's Will Contesting: 10 Essential Facts
Contesting a will can be daunting, especially when you're unsure of where to begin. Here are the essential points you need to understand before taking any action:
1. Don't Miss the Deadline: You have six months from the date of the probate grant or administrator appointment to contest a will. However, exceptions can be made if the estate hasn't been distributed. If the estate has been wound up, you will have missed your chance.
2. Eligibility Matters: If you're a spouse, partner, child, or stepchild of the deceased, you're likely eligible to contest the will. If unsure, seek legal advice tailored to your circumstances. The crux of a claim is whether the deceased had a moral duty to provide for you.
3. Timeframe for Resolution: Most claims are resolved within six to nine months through negotiation or mediation. If a hearing is necessary, it might take twelve to eighteen months, maybe longer. Be prepared to negotiate, legal costs can quickly get out of hand.
4. Timing is Crucial: You can contest a will only after it's probated or when an administrator for the estate is appointed by the court. If you know that an executor has not applied for probate, perhaps to defeat a challenge by simply delaying, you can apply to court for assistance to compel the executor to apply for probate or offer up the Will so that the next person in line can apply for probate.
5. Know Your Claimable Assets: You can claim against assets owned or in which the deceased had an interest. Trusts and superannuation usually fall outside this scope. You will have to pursue claims against any other entity separately. Also remember that if the deceased owned property with another as a Joint Tenant, that other person automatically becomes the sole owner of the property without the need to apply for probate or reference to the deceased Will.
6. Court Considerations: The court assesses the moral duty of the deceased to provide for you and whether the distribution of the estate adequately meets your needs. You will need to disclose your financial position to justify your claim.
7. Legal Process Overview: Contesting a will involves legal proceedings against the estate. This includes exchanging documents, mediation, and potential court hearings. Be aware before you get started that it will be a lengthy and stressful process, coupled with your existing grief of the loss of a loved one.
8. Assessing Your Claim's Value: Determining the worth of your claim involves complex considerations and varies between judges. Expert legal assistance is key. You should seek legal advice, and remember that there are no guarantees that you will get what you want or indeed anything at all.
9. Understanding Costs: Contesting a will typically incur costs ranging from $30,000 to $50,000 to potentially a whole lot more, often covered by the estate. The bigger the estate the more these costs seemed to blow out. A successful claim usually results in costs being paid from the estate.
10. Exploring Fee Arrangements: Financing options are sometimes available from external loan providers, who will likely also require some commission or uplift to finance the proceedings. These options can be a lot more expensive than they first appear.
If you're considering contesting a will in Victoria, our team at HazeLegal is here to assist you. We'll assess your case, provide clear guidance, and work to achieve your best possible outcome. Don't hesitate to reach out to us for expert advice tailored to your situation.
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This is a commentary published by WebWills for general information purposes only. This is not meant to be taken as particular advice. You should seek your own legal and other advice for any question, or any specific situation or proposal, or get in touch with the writer at http://webwills.com.au before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories.
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