Not only is the success rate of contesting a Will is complicated with legal procedures, but it can also family relationships. Challenging a deceased individual’s Will means questioning the validity of their statement. Typically, this is done during the probate period after their death and is known as filing a family provision claim.
Studies have shown that contesting of Wills in Australia has an average of 74 percent of Family Provision Claims in Australia which are successful. The success rate in Queensland is even higher at 77 percent.
In increasing the success rate of contesting a Will, you need to prove that the testator, the person who has made the Will, made an error to some degree. A beneficiary from the family usually volunteers to come forward in contesting the Will, because they have the underlying feeling of being inadequately provided for.
Success Rate Of Contesting A Will And Eligibility
One of the biggest factors in the success rate of contesting a Will is who is eligible to do so. The law relating to who is eligible to contest a Will differs in each state. Generally, an ‘eligible person’ is:
- Spouses, former partners (This includes de facto relationships including same-sex partners)
- Children or step-children
- A member of the deceased’s household
Is it worth contesting the success rate of a will? This is a very personal question and different people might have opposing or different answers. Each Will is unique and different, therefore the time frame of proving the success rate of contesting a Will most likely varies.
There are certain legal grounds on which one can contest a Will. These are:
Duress of undue influence
Undue influence happens when a party unfairly influences another to enter into contracts, in this case, a Will. This legal ground can make a Will invalid, but these cases are hard to contest and require clear evidence of behaviour that left the Will-maker with no option but to make a Will with a different method.
Lack of testamentary capacity
A Will can be contested if the person who made it at the time lacked testamentary capacity. If this is the case, the court has the power to refuse in admitting the Will to probate. If this is the case, the person’s previous Will is admitted to probate instead. This is why it’s advisable not to discard or destroy former Wills to increase the success rate of contesting a Will.
There are several cases dealing with testamentary capacity. If a Will is contested on this basis, the court will make a determination based on the findings presented to them. A person’s mental or physical disability may affect the making of a Will, so a medical report should be presented prior to making a Will to not let issues arise.
Here are other examples of evidence one can utilise for increasing the success rate of contesting a Will:
- The size of the deceased’s estate
- The time frame and nature of the relationship with the deceased
- Obligations or responsibilities the deceased had to the applicant
- Financial necessities of the applicant
- Age of the applicant at the time of the court hearing
- Evidence and statements made by the deceased to the applicant
The Process Of Contesting A Will
Making a claim against the estate of the deceased or making family provisions claims can help in the success rate of contesting a Will. While there are several circumstances that may affect the procedures of contesting a Will, it generally takes about six months for settlements out of court and around two years for a court hearing.
The process of increasing the success rate of contesting a Will can be sped up if all parties are showing their willingness to negotiate in an attempt to settle matters early. With that being said, here are some general steps in contesting a Will:
1. For starters, the individual must ascertain whether they are an eligible person entitled to make a claim.
2. The claimant must notify the executor of the Will of their intention to make a claim. An executor of a Will is somebody who nominates to carry out the wishes left in the deceased’s Will.
3. Both parties can now offer negotiations in resolving the matter before the need for court proceedings. If a mutual agreement is made, a formal agreement is drafted to protect both parties.
4. Court proceedings will then take place if the matter is unresolved. A summons and an affidavit are needed in court to support any evidence for the claim. It is worth noting that the executor and the beneficiaries have opportunities to defend the claim.
5. All parties involved in the Will dispute will participate in a mediation session to try and reach an amicable agreement over the deceased’s estate.
6. Given that the claim isn’t resolved at mediation, a trial can be set and all parties will need to present their opposing positions for a final hearing in court. Both parties then will need to demonstrate and show their respective financial needs regarding the estate to the judge.
7. The judge settles all relevant evidence and decides if there is a need to further the provision should be made in the estate. The judge also decides how the court fees will be settled.
Additional Factor To Succeed in Contesting A Will
We’ve explored how to contesting a Will. Sometimes, you may find that the Will was proven to be invalid from the start. In cases like these, the applicant may challenge the Will. Factors like fraud, forgery, and undue influence can be closely linked to this and can be used to challenge a Will. Contesting and challenging a will are actually two different things.
Increasing The Success Rate Of Contesting A Will With Legal Advice
Contesting a will and succeeding with it is a tough challenge to face alone. When one is feeling left out of a Will or not being treated fairly as a beneficiary of a Will, it is only wise to seek legal advice. Our team at JB Solicitors consists of expert lawyers on Wills and Estate Planning who are determined to aid our clients in contesting their Wills successfully.
We offer fixed-fee prices for our services to ease your financial worries to help you steer your focus on increasing the success rate of contesting a will.
Contact us today