A grant of Probate is made after a Will maker dies and the court confirms the Will is valid. This gives the Executor legal authority to carry out the terms of the Will.
Australian law allows you to contest a Will after Probate has been granted. But it’s important to act quickly if you want to challenge a Will because it can be difficult – if not impossible – once the assets have been distributed.
There is a difference between “contesting” and “challenging” a Will:
There are different time limits and conditions in force in different states and territories. To successfully contest a Will, you will need legal advice on what applies in your situation and follow it without delay.
Who can contest a Will?
To contest a Will you need to be “eligible” meaning that your relationship to the Will maker will usually be one of the following:
You could also be a close friend or someone who feels they have a rightful claim because of the support or companionship you provided to the Will maker during their life.
Some eligible relationships will have a higher priority than others when a Will is contested. For example, a spouse will have priority over children and a Will maker’s younger children may have priority over adult children or step-children.
While these categories cover the most common relationships, each state and territory has subtle differences in how they define who is eligible to contest a Will. Professional advice may be needed to determine if you fit the definition.
What are some grounds to contest a Will?
You can contest a Will if you had an eligible relationship and can prove that the Will maker had an obligation to provide for you. These are known as family provision claims.
In addition to the quality of your relationship with the Will maker, the following factors are some things the court will look at when making a decision about your claim:
How long do you have to contest a Will in Australia?
If you’re legally eligible and have grounds for a provision claim, the next important question to ask is when can you contest a Will?
Australia's states and territories have different time frames for this. At the time of writing the limit is 6 months in Victoria, 9 months in Queensland and 12 months in NSW.
When does the specified time frame start? This also varies. Some states and territories measure it from the date of death and others from the date Probate is granted.
It’s important to observe the time limits on contesting a Will and get advice on what limit applies in your particular state or territory. It can be very difficult to successfully contest a Will after the time limit has expired and the court may only consider it in exceptional circumstances.
How much does it cost to contest a Will?
Contesting a Will can be a complicated process and the costs can quickly add up depending on the course you take.
If the Beneficiaries manage to resolve things between themselves or with informal mediation the costs can be kept to a minimum.
If you have a legal advisor acting for you and you resolve the matter out of court, the average cost could be $5,000 to $10,000. If things are more complicated and require court action, the cost can easily be double that to begin with, and will quickly rise upwards if the matter is drawn out for any length of time.
Who pays the costs of contesting a Will?
The Executor may agree to pay costs from the Estate, however, this is not always the case and if you contest a Will you may need to apply to the court for costs to be paid.
It’s important to have a well drafted Will that makes provision for the people and things you care about.
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