Will disputes and estate litigation are often complex matters that require clear and professional understanding. Will disputes can happen due to various reasons. There are some matters that you may need to consider when planning to contest a will.
Listed below are the common questions about estate litigation and will disputes:
What should I do if I feel I am unfairly left out of a will?
It’s always an emotional and challenging decision to contest the will of someone who has passed away. However, if you are entitled to make such claims versus the deceased estate, careful consideration must be provided to the prospects of success.
A Family Provision Application can be prepared on your behalf and submitted to the court. This will formally challenge the proposed distributions under the will and request the court to create an order that you are also adequately provided for from the deceased’s properties.
What can I do if I am not satisfied with the will’s executor?
In case you feel that the executor of a will is not doing his or her duties correctly, misbehaving or has a conflict of interest, you can bring an application for the court to remove the executor.
The courts have the power to remove an executor or a personal representative of the estate. But the removal is still at the court’s discretion.
The court will consider whether there in fact has been any misconduct or mismanagement of a deceased estate in the submitted application.
Who should pay my legal costs if I challenge a will?
In a general sense, the legal costs when making a Family Provision Claim can be paid from the deceased’s estate. However, that is not always the case. If the executor of the deceased’s estate refuses to pay for the legal fees associated with contesting the will, you can apply to the court for an order that the expenses be paid.
It is important to always remember that if you fail in challenging the will, the court can order you to pay the costs yourself. It is crucial to seek legal advice regarding this matter before making a family provision application.
How will I know if I can contest a will?
You can contest a will if:
- There is a clear mistake in the will, and a court order is made to rectify the error
- Correct provision is not made for you in the will
- The will maker lacks the capacity to create the will
- The will maker is subjected to undue influence
- There is a promise made to you that there would be a certain part of the estate to be left to you but has not occurred in the will
An application is required by the court to contest a will. Since there is a strict time limit to file an application to challenge a will, it is crucial to get legal advice as soon as possible.
Do I have to go to court when contesting a will?
Most will disputes and family provision applications are settled outside of court. If you challenge a will and start the court proceedings, the court will give directions that are to be adhered to before the court will send the matter for a trial.
A common court direction is for parties to hold a mediation (an informal conference) where all the involved parties in the will dispute will meet and try to resolve the issues raised over the proper distribution of the deceased’s assets. If the claim is not settled at mediation, the opposing parties are then able to have a judge determine the matter at trial.
Finding a lawyer when you feel that you’re unfairly left out of a will can be both rewarding and challenging. Keep in mind that you need to find a reliable lawyer to represent you and help you with the process of will disputes and estate litigation.
If you need excellent estate litigation lawyers in Brisbane or Springwood, Roche Legal is here to stand in your corner. We provide a free initial claim review for new clients in person or over the phone. Contact us today for more information.
Related: See Part 2.