Please view our list of frequently asked questions below.
If you have any questions that is not answered below, please contact us.
If you:
…chances are you will have a will dispute claim.
The Contesting a Will page on this site provides more detail.
Alternatively, book a free 15-minute consult and we’ll provide an assessment over the phone
First step is to ask the executor. If you don’t know who the executor is, or the executor refuses to provide a copy, consider the following:
There are a number of other avenues you can consider, all of which your lawyer should know.
If you are having no luck with the above approaches we suggest you book a free 15-minute consult and we may be able to help you with this step.
It can be quite expensive. We have run cases where the legal fees have been anywhere between $1,000 for a quick settlement and $90,000 for a court hearing. Of course, these examples are at opposite ends of the spectrum. Most cases, if settled early, will have costs around the lower end of the scale.
The court has the power to order that legal fees in relation to proceedings be paid out of the estate of a deceased person. If you are successful, it is likely that most of the fees will be awarded out of the estate.
If you can’t afford a lawyer, see No Win No Fee. If you want certainty of cost, read about our Fixed Fee service.
Alternatively, book a free 15-minute phone consultation and we will be happy to talk you through it.
You’re not alone. Most people can’t afford a lawyer.
If we are of the opinion that you have a good case, in other words, that the court is likely to award legal fees be paid from the estate, we will suggest a ‘No Win No Fee’ agreement.
In that event legal fees only get paid at the end and only if you are successful.
See our Fees page for more information or Contact Us to discuss a fee structure to suit your requirements.
No! Court should be avoided! That’s why there is a compulsory mediation process. You are unable to get a hearing before a judge until the court knows you have first tried to settle.
Over 85% of our cases settle out of court. Engaging a lawyer who specialises in will disputes considerably increases your chances of settling early. He or she knows the right questions to ask in considering the strengths and weaknesses of a claim. They are therefore more able to determine what a reasonable settlement is, early.
Book a free 15-minute phone consultation if you have further questions.
If a deceased person died without leaving a will there are standard rules in place to decide how that person’s assets are distributed. The law calls this dying ‘intestate’; the rules of ‘intestacy’ will apply. These standard rules can be challenged, just like any will can.
The practical difficulty that arises when someone dies without leaving a will is who will administer the estate? That is a good question, and depends on the individual circumstances.
If there is no will and you are unsure what to do about it, contact us to discuss the matter further.
An estimate of costs including any ‘hidden costs’, such as counsel’s fees, filing fees or other disbursements, will be clearly spelt out in an easy to understand, plain language agreement between us.
There are rules that require solicitors to have an agreement with clients, protecting them from any unforeseen charges. Both you and us will be bound by that agreement and you will have recourse to the Law Society in your state if hidden costs are charged that were not disclosed.
Have you been out of touch for years? Well, there are always two sides to the story. Although you may have had a falling out, or what the court calls an ‘estrangement,’ with a deceased person, it doesn’t mean that you can’t make a claim.
The law is filled with examples of children who have been estranged from a parent for long periods of time but have still made successful claims on the estate.
If you want to discuss the particulars of your estrangement in light of a potential claim we suggest you book a free 15-minute phone consultation with Alison Butler to discuss your circumstances further.
If you are not named in the will the executor of the estate is under no legal obligation to notify you of a person’s death.
So, unless you are in touch with a family member or friend, there is no definitive way to find out if someone has passed away.
You can search the online court resources to see if an application for a grant of probate has been made on behalf of the deceased person:
https://onlineregistry.lawlink.nsw.gov.au/content/search-probate-notice
https://www.supremecourt.vic.gov.au/wills-and-probate/searching-probate-records/applications
http://apps.courts.qld.gov.au/esearching/
… but not all estates will require a grant of probate.
When it comes to time limits passing, people often say ‘but nobody told me!’ The truth is, no one is obliged to tell you. You find out if someone passes away by keeping in touch with people close to them, checking obituaries or doing probate searches.
If you are a grandchild of a deceased person you are eligible to make a claim upon their estate in New South Wales if you can also show both of the following things:
and
Dependency: can be financial, material or emotional but cannot be merely emotional. It is not enough that your grandparents supported your parents and that you benefitted from that financial support. You need to show a more direct dependency.
Factors warranting: this means the court would want you to show that you were the type of person they would expect a grandparent to include in their will and/or your application has a reasonable likelihood of success.
Generally speaking, you will contest a will in whichever state probate is obtained in. While there are exceptions, probate will be obtained in the state that the deceased lived and owned property in; where he or she were ‘domiciled’, where the deceased was physically present, where he or she lived.
If a deceased was domiciled in one state but left property in another it is sometimes necessary to obtain a reseal of the grant of probate in another state.
Many solicitors work in a broad area of law. They may do a bit of conveyancing, the odd DUI charge, some family law and commercial.
Estate law (and family provision in particular) does not fit into any of these categories. It is not the same as family law. It is in a different court with a different jurisdiction to your local and district courts. In New South Wales and Victoria these claims are made in the Supreme Court. It is a higher court than local and district and it has a different set of rules.
If you engage a lawyer who specialises in will disputes they not only offer the best early advice but are poised for action as soon as it becomes necessary. A lot of time, money and stress can be saved if you engage someone who knows the area like the back of their hand. He or she will save you more than just money, they will minimise stress and provide reassurance that your case is in safe hands.
Ironically, inexperienced solicitors often end up costing a client more because they are more likely to have to seek the advice of a barrister early.
In New South Wales, a former spouse of a deceased person is eligible to contest a will.
Although eligible to contest, there are few situations where such an applicant will be successful.
One example is if the former spouse/partner ended their relationship with the deceased prior to their death, but did not enter into a property settlement, without finalising their financial affairs. If there was no division of marital assets the former spouse may be able to argue that they should have been provided for in the will of the deceased and, depending on the other circumstances including the size of the estate and its competitors, may be successful in a will dispute claim.
There may be other circumstances in which a former spouse is able to challenge the will but it will depend upon the particular facts of each case.
Mostly, a former spouse who has had a property settlement with the deceased is unlikely to have a valid family provision claim as the court will view the property settlement as representing a finalisation of the couple’s financial affairs.
If you are a child or partner of a deceased person, or someone who was otherwise close to a deceased person, you have been left out of their will or you have not been left much under the will, and you can show that you have a need for financial assistance you are in a reasonable starting position to consider contesting the will.
From this point you then need to consider more specifics, such as:
Go to our Contesting a Will page to see state-specific detail.
These phrases are really just different ways of saying the same thing. BUT … there are two different ways to contest a will.
The first is a family provision claim. That is when you have been left out of a will or you have been treated unfairly in a will.
The second way to contest a will, or challenge a will, or dispute a will, is to say the will itself is invalid and should not be recognised by the court. These types of cases usually arise when the person who made the will was suffering from dementia or alzheimers or they were put under pressure by a relative to change their will. The legal phrase for this type of pressure is ‘undue influence’.
If your situation falls into either of these categories we suggest you call book a free 15-minute phone consultation to discuss the matter further.
Contrary to popular belief, there is no hard and fast rule about whether or not you are a de facto for the purpose of family provision claims.
The court will consider all of the circumstances of that particular relationship, including (but not limited to) the following:
It is not necessary to establish all of the above factors, they will be considered in isolation or combination. For example, it is possible to be in a de facto relationship but not share a common residence.
Some relationships are borderline de facto and can be difficult to establish in accordance with the above criteria.
If you believe you are a de facto but are uncertain we suggest you book a free 15-minute phone consult to discuss your circumstances with an
If you are a child of a deceased person you are automatically eligible to make a claim upon the estate.
If you are a child who has been adopted by a deceased person you are still legally their child. Adopted children are therefore equally eligible to claim on an estate as birth children.
However, an adopted child cannot claim on the estate of its birth parents because he or she ceases to be regarded in law as their legal child.
If there is doubt surrounding the paternity of a child, simply obtaining a copy of the birth certificate is usually sufficient to absolve such doubt.
If paternity is still in question it is helpful to consider the assumptions about parentage outlined in http://www6.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/soca1996199/. This Act shows the circumstances under which a court will presume a person is the mother or father of a child (unless there is evidence to prove the contrary).
For example:
What provision should a testator make for a spouse? As always in this area of law, the answer is … it depends.
We encounter many cases of what the court describes as ‘blended families’. That is when a testator with children from a first marriage and a spouse from a second marriage seeks to provide for them both.
To whom does the spouse owe a duty and what is the extent of that duty?
Blended families have been particularly problematic for the courts throughout the years. The courts often consider the deceased’s primary responsibility as being to the surviving spouse rather than adult, able-bodied children who have an earning capacity. If there is sufficient money in the estate after the spouse has been provided for, the children’s needs will then be considered.
So what is adequate provision for a spouse?
Guidance can be obtained from the oft-quoted case of Luciano v Rosenblum, in which it was said:
“ … the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her
In New South Wales, if you were a person who was both:
… you are eligible to make a claim upon their estate.
The phrase ‘member of the same household’ is not defined in the Act, but judges have said it requires some continuity or permanency of living arrangements.
It is possible to be a member of more than one household. For example, children in a shared custody arrangement may be a member of more than one household.
In one case a judge said that it is relevant whether or not a person has a key to the house. But that is just one potential indicator. If a person does not have a key it doesn’t necessarily mean they are not a member of the household. The court will consider the unique circumstances of each case.
Questions as to whether a boarder is a member of a household are more complicated. If you are a boarder at the time of death and you are caring for the deceased without payment it may be that your circumstances
Please note:
A close personal relationship is where two adults who are not married or in a de facto relationship live together and provide each other with domestic support and personal care.
The support and care cannot have been a paid service, nor as a volunteer working in a charitable organisation.
You do not have to have been in a sexual relationship and you do not need to demonstrate that one or the other was providing financial support.
People seeking eligibility to bring a family provision claim under this category need to establish a certain quality, duration or regularity of care to meet the criteria. It would not be sufficient to help out every now and then, you would need to be able to establish some consistency.
The ‘care’ can be both physical and emotional support. It is not necessary to establish that you lived together full time, but you would need to show aspects of sharing a common residence.
If you are considering making a family provision claim
In New South Wales, if you are one of the following categories of applicant:
… then you also need to show there are ‘factors which warrant the making of an application.’
The legislation doesn’t tell us exactly what this means but you would need to show that you would be regarded as a ‘natural object of testamentary recognition’ by the deceased.
Another view is that factors warranting exist if the applicant has a reasonable prospect of success.
As the act doesn’t specify the meaning of this phrase, definitions can only be gleaned from judicial decisions. The legislation has been criticised as being a ‘poorly conceived and clumsily expressed subsection.’ Regardless, it is a step that needs to be considered in light of your particular circumstances.
Unlike other Australian states, Victoria does not have a predetermined list of eligible applicants for the purposes of family provision claims.
In Victoria, while a deceased person still has a moral duty to provide for a surviving spouse or child who can demonstrate a need for provision, that moral duty is not restricted to family members, but embraces claimants who, although not related to the deceased, can still demonstrate a moral claim to the estate.
The Administration and Probate Act (Vic) 1958 outlines the following considerations to determine whether a deceased person had a responsibility to provide for an applicant:
If you are not a spouse or child of the deceased but were otherwise close you may be eligible to claim as a dependant.
A dependant is a person who was, at any particular time, wholly or partly dependent on the deceased person,
AND
is a grandchild of the deceased person
OR
was, at that particular time or at any other time, a member of the household of which the deceased person was a member.
NB: If you are a dependant but you are not a grandchild you also need to prove that there are factors which warrant the making of an application.
A dependant depends on someone or something for what is needed. The dependency can be of a financial, emotional or material nature, but needs to be more than just emotional.
For example:
Each situation will be unique and the court will examine the whole relationship between the person and the deceased.