If you believe you should have been provided for, you can take steps to contest a Will, however, this decision should be made carefully as it can often be an emotional and complex process. If you are eligible to make a claim against the deceased estate, an evaluation of the likelihood of success should be carried out.
If you are eligible and likely to succeed, your solicitors can make a Family Provision Application to the Court on your behalf, requesting that the Court make an order to ensure that you are provided for out of the deceased’s estate.
There are many different reasons why you might contest a Will. Some of these may include:
A promise was made to you about the benefits you would receive, though this has not occurred;
There is an obvious mistake in the Will;
You do not believe you were properly provided for;
You believe the Will maker did not have appropriate capacity at the time the Will was executed; or
You believe that the Will maker was unduly influenced by another at the time the Will was executed.
In deciding whether or not you are eligible to contest a Will, you should seek specific legal advice.
It is possible to have your legal costs covered by the deceased estate but this can ultimately depend on the executor/s and/or the Court. If the executor/s do not agree to pay your fees, you may apply to the Court to make an order for your costs to be paid. If, however, you are unsuccessful in contesting a Will, the Court may order for you to pay the costs of the deceased estate. Specific advice should be sought with regard to whether your legal fees can be paid out of the deceased estate.
Whilst it may be necessary in some instances, a majority of estate disputes settle without the need for a trial. The Court will often provide directions outlining steps that must be taken before proceeding to Court. Mediation is often used to successfully settle estate disputes, giving parties an opportunity to resolve the matters face to face.
In Queensland, Family Provision Applications come with strict time limits. If you plan to contest a Will, you will need to notify the executor/s within 6 months from the date the deceased passed. You will then have only a further 3 months to commence Court proceedings. If you have experienced extreme circumstances that have prevented you from complying with the time limits, you may apply to the Court for special consideration.
But Probate has already been granted! Can I still make a claim?
Even if Probate has been granted, as long as you comply with the imposed time limits, you may contest a Will.
* Please note that all advice given above is for general purposes only. For specific advice tailored to your personal circumstances, please contact Axia Litigation Lawyers, because every move matters.
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