Eligible people can proceed with will contesting or a claim for probate from an estate when they feel they are inappropriately provided or left completely out of the will. In legal terms, these claims are termed as family provision claims. The ‘eligible people’ for contesting a will are a spouse (de facto or married), children including the step who shared the same household with the deceased and were dependent on him/her. The Court takes a vast array of factors into consideration while deciding the provision for the claimant. One of the most significant factors is the financial condition of the claimant for a provision rightfully from the estate.
Contesting a will, Victoria implies that you have six months from the demise to file for a provision claim in the Court of Law. Though this time is fixed in some exceptional cases, an extension of time can be given. One can move the court for an extension of time; however, the court will approve extension only it feels there is a valid reason for deferral in making a claim.
Do Not Be Late
Initially, six months seem like a long time but if one has made up his mind for contesting a will, then delaying can be dangerous. Seek legal advice as soon as possible. It is slightly difficult in a moment of grief, but it is important to protect the rights of the claimant. The distribution of assets can take place within six months. In a case wherein the estate is distributed before the executor is notified about the potential claim, or the claim has been dealt, it can turn things difficult for the claimant especially if the beneficiaries are started using the money or other assets.
Length of Time
Will contesting can take a few months or a couple of years. It varies from will to will and is dependent on certain factors including how simple or complicated the lawsuit is and if the parties are ready to negotiate in the early stages or not.
Steps Involved In Settling a Claim
- The claimant needs a copy for contesting a will, complete details of the assets and the liabilities if any of the estates. Once this step establishes the claim and no offers for the settlement, it’s time to take the next level.
- The claimant sends a notification to the executor (via a solicitor) about the intent of making a claim. He requests for an assurance that the executor won’t distribute the estate till the claim is decided.
- Get a mediation store. At the directions hearing, the judge tells about the mediation date. The judge gives directions to the lawyers to prepare the case for mediation. This ascertains no relevant information is misplaced.
- If the parties are ready to negotiate and resolve the Family Provision Claim in the initial days, the issue may get resolved before the court proceedings start. So, if both the parties reach an agreement at this stage, an agreement can be laid to safeguard the rights of the parties involved.
- However, when the issue does not get resolved, it’s time for the court proceedings. It starts by filing summon and an affidavit in court presenting the evidence to support the claim set up on the executor.
- The beneficiaries and the executor can use the subsequent weeks or months to assemble and present their evidence to support their claim.
- The parties involved in contesting a will can engage in a settlement or mediation conference with the perspective of resolving it without going to the court. This step is mandatory, and a lot of cases get resolved at this stage.
- When a matter doesn’t get settled at the settlement or mediation conference, then it is time for the parties to prepare themselves for the final hearing. However, some cases get settled before the final hearing though failing at the mediation stage. The Judge listens to the evidence whereupon he decides if the claimant should get the provision or in some instances further provision. Moreover, the Judge settles the cost of the parties towards the proceedings.
You read about the general outline of the whole procedure. Depending on the case, there may be more steps involved in will contesting.
Contesting a will is an unpleasant experience, yet to have someone who is experienced to walk you through the whole journey of a lawsuit can be extremely useful.
If you any more questions, ask us. We will try to settle your anxieties.