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Sometimes disputes occur if a Will is not drawn up the way a person intended or there are disputes about the assets, distribution or where someone believes they have been unfairly excluded from a Will. In situations like this, people may choose to contest the Will.

Family provision claims

A person in Australia has the right to make a Will and leave their assets to whomever and in such manner as they please. They can decide who the beneficiaries of their estate are and what is to happen to their assets after they die.

However, there are laws in Australia to ensure that people who have been left out of a Will entirely or have not been left with enough provision are not overlooked. If you have not been adequately provided for in a Will, you can bring what is referred to as a ‘Family Provision Claim’ (commonly known as contesting the Will).

The law in Australia allows a court to order provision out of a deceased person’s estate in circumstances where the deceased’s Will (or the Intestacy Rules where the deceased left no Will) does not make adequate provision for the proper maintenance and support of that person.

What does the court consider in determining adequate provision?

The court will take many factors into consideration when determining whether a person has been adequately provided for, including:

  • their financial and personal circumstances;
  • their relationship with the deceased;
  • the financial circumstances of the other beneficiaries who receive the estate;
  • the circumstances that led to the making of the Will; and
  • the size and nature of the estate.

Not all families are perfect. Not every person who has a case necessarily had a close relationship with the deceased at the time of their death and it may be that something happened in the past to create tension and distance. In many families, things have happened and there has been outside influences such as other family members that create difficult family relationships.

These circumstances should not discourage a person from making a claim because in many cases, the deceased person still has an obligation to provide for them.

Whilst contesting a Will can be a daunting process, particularly during a time that you are grieving the death of a loved one and in many cases, shut out from important decisions before and after their death, at Emera Smith we will ensure the solution provided to you is both practical, commercial and cost-effective.

Time limits for contesting a Will

Time limits to contest a Will apply. In Victoria generally claims against an estate must be commenced within six months of the date of the Grant of Probate or Letters of Administration.

Defending a contested Will

If you are an executor of an estate and someone is challenging or proposing to challenge a Will, we can assist you to protect the estate and defend the claim. If you are a beneficiary of an estate where the Will is being contested and you need to defend or protect your interests in the estate, we can help you.

It is the duty of the executor or an administrator where a person has not left a Will, to uphold the terms of the Will or the distribution of the deceased person’s estate under the Intestacy Rules. However, an executor or administrator can also settle claims for the benefit of the estate before or during court proceedings or at mediation, thereby saving costs and creating certainty.

If a claim is made and you are an executor of the estate, the costs of defending the claim can be paid from the estate, therefore it is unlikely you will need to contribute your own funds to legal fees.

However, a vast majority of family provision claims are successfully resolved through mediation, an alternative dispute resolution procedure, without having to resort to court proceedings, thereby reducing the costs which may be ultimately borne by the estate, and making sure to protect, as much as possible, the share of the estate you and other beneficiaries stand to receive.

Emera Smith can navigate you through the process if someone does contest the Will and help you to obtain an outcome which is cost-effective and does not significantly delay the administration of the estate. 

Although it is highly unlikely your case will go to court, if your case cannot be negotiated, or if we think the best approach for you is to defend the proceedings in court, we will present your case and provide you with sound, professional and competent representation and advice.

We will also discuss the costs, process, and timeframes with you so that you can make a decision that is right for you. If you wish to proceed with your claim, we can immediately start to get the process underway by obtaining all the relevant information from you and preparing your defence.

Get help

Emera Smith can assist you if, after the passing of a family member, you have been left out of a Will or the amount you do receive in the Will is not adequate.

If you had a close and meaningful relationship with the deceased or are a child, spouse or partner of the deceased, you may be eligible to contest the Will or the distribution of the deceased person’s estate. in the event that they did not leave a Will or the Will they left is not valid.

We will ensure we exhaust all mediation and dispute resolution options prior to commencing any legal proceedings. This approach helps to lessen the stress and uncertainty involved in legal proceedings and saves you time and money.

Our lawyers have a strong history of obtaining successful outcomes for our clients, through mediation or negotiations, without the need for our clients to experience costly and lengthy court proceedings.

In many cases, we offer deferred fee arrangements. Contact us now to discuss our fee arrangements and we can let you know what options we can provide for you.

How can we help you today?

03 8625 8957 info@emerasmith.com.au

We're here to help you move forward with your legal matter. Understanding where you stand by getting the right advice early will give you clarity and certainty.

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