Can You Contest a Will after Probate?

If a person close to you dies, you'll have to wait for probate to be approved before any assets- including real property, money or business investments- are distributed your way.

This process ensures the deceased's estate is distributed according to a valid will and estate plan. Moreover, it creates a delay in which to voice any disputes or concerns on the proposed estate plan distribution. Whether its concerns over mental capacity of the will writer, the legal validity of the will or the assigned legal guardian, you might have the power to challenge or contest a will, and alter the administration of the estate.

Let's start with a quick recap on what probate is, how it aims to protect the deceased's wishes, and the laws surrounding when, and how, you can generally expect to challenge estate distribution.

What is probate

A grant of Probate is made after a person's death, if they hold a valid will. Probate is the legal document whereby the court confirms that the will is valid, and the estate assets are distributed. This grants the executor the legal authority to administer the terms of the will and distribute the deceased estate.

Contesting a deceased estate in supreme court

Australian law allows an eligible person to contest a Will after Probate has been granted and court order on asset and property settlement has been finalised. Whether through drawing into question whether the will is legally valid- via testamentary capacity concerns, unmet formal requirements or undue influence- or via a claim that you were partly dependent the deceased person. Regardless of your claim, acting earlier when challenging a Will increases the likelihood of success, as it can be difficult – if not impossible – once the assets have been distributed.

There is a difference between “contesting” and “challenging” a Will:

• You can contest a Will if you're someone who should reasonably expect to benefit from the Will maker's Estate and have been left out or treated unfairly. Disputes under this category are made by a potential beneficiary, who has evidence. of their financial need or dependency on the deceased.
• You can challenge a Will when the Will itself is not valid, due to concerns over the validity of the executor, ambiguity in the deceased's estate wishes, or undue influence concerns.

There are different time limits on will administration, as well as conditions to grant probate in different states and territories. To successfully contest a Will, you will need legal advice from a lawyer or solicitor. They can evaluate your particular circumstances in relation to how the estate's assets distribution have been outlined in the will.

Who can contest a Will?

To contest a Will you need to be “eligible” meaning that your relationship to the deceased Will maker will usually be one of the following:

• Spouse or de facto partner
• Child or dependant
• Grandchild
• Parent or carer.

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, there are subtle differences in the laws of each state and territory, which create differences in who is eligible to contest a Will. Crucially, not all loved ones or family members have the power to create a valid will challenge or contest. Professional advice from a lawyer may be needed to determine if your relationship to the deceased person, and your personal circumstances, fits the required definition in your state.

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 court will consider the following criteria when making a decision about your claim:

• The deceased estates assets are needed to ensure your financial needs are properly provided for
• Evidence this need is greater compared beneficiaries
• If the estate and property is large enough to divide between you and the other Beneficiaries without anyone suffering hardship
• Whether you contributed to the Will maker's finances, property or Estate during their life
• If you require special support because you have a physical or mental disability.

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 to seek alterations, aka 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 and family manage to resolve things between themselves, or with informal mediation, the costs can be kept to a minimum. This will benefit all involved- reducing stress, maintaining relationships in the future and removing the need to get lawyers involved in your personal family affairs.

The alternative of getting lawyers involved can become costly. If you have a legal advisor acting for you and you resolve the matter out of court, you could expect to pay an average of $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.

Whilst the Executor may agree to pay costs from the estate, this is not always the case. If you contest a Will, you may need to apply to the court to cover the financial burden of this challenge. This can generate extreme stress amongst a family in the aftermath of a death, and delay the distribution of assets and the fulfilment of the deceased's wishes.

Writing a well-drafted will is a key step in avoiding these challenges occuring amongst the family in the first place.

Safewill can Help

It's important to have a well drafted Will that provides for the people and things you care about. An online will with Safewill can grant you the power to make this happen, ensuring the validity of your will and the fair distribution of your assets amongst your family. It's easy, affordable and flexible- so you've really no excuse not to.

Start by giving us a call on 1800 103 310 , or via live chat now. And take the first steps in obtaining that all important legal document, assets protection and peace of mind.