Contesting or challenging a Will: what the process looks like 

Contesting a Will has a number of names: challenging a Will, estate litigation, making a claim under the Family Provision Act, an inheritance claim or a Testator’s Family Maintenance claim. There are many types of Will challenges, including challenging the validity of Wills such as when a Will is a forgery or made by a person who did not have mental capacity, but the most common challenge we see is the Family Provision claim.

We are experts in the field of estate challenges and all forms of estate litigation. We act for clients on both sides of the fence; we help right the wrongs when clients have been improperly left out of a Will or received less than they should, and on the other side of the coin we act for those defending Wills from a challenge. Our job is to help square the ledger, seeing the right assets distributed to the right people for the right reasons. 

The number of challenges to Wills is on the rise

The number of challenges to Wills is on the sharp rise and estate disputes are common. We put this down to a number of factors:

• Australian family structures and dynamics are simply far more complex these days coupled with the increased and more complex pools including trusts;
• Current generations are far wealthier and there is more at stake, with an estimated $4.3 trillion of assets passing from the outgoing generation down the line right now in Australia
• Lack of preparation – many families do not have up-to-date Wills or estate planning documents in place meaning the documents don’t reflect the current landscape of the family, and challenges become inevitable. 
• Poor quality of the documents – some Wills are drafted poorly by generalist lawyers not well versed in succession law, some are hopeless newsagent Wills and DIY jobs that make no sense, some are just capricious and designed to cause hurt and harm to family members.  These sorts of Wills are ripe for challenge, and harder to defend as well by family members who might benefit from them.

Challenging a Will has a very high likelihood of success – recent Australian research shows that when a challenge is made, more than three-quarters of them result in a change to the way the Will was originally set out to divide assets. 

We often see clients who have been completely excluded for lifestyle reasons, or due to fights that may have happened many years ago, issues surrounding de facto relationships, step-children, dependent grandchildren, second marriage considerations, unequal gifts to children during life and business asset distributions.  

Challenging a Will – step-by-step process

When it comes time to challenge or defend a Will challenge, we know that it can be daunting.  Knowing the process is important, so we’ve outlined the common steps below.

Step 1 – Get in contact

Take early advice on your position. Take advantage of our free 15 minute consultation – during this time we can work out the basics of whether you have a genuine claim, your prospects of success and start to get a feel for the sort of strategy you will need going forward.  We can also work out if you are defending a claim what sort of defence is best for you against the challenger.  It is vital to remember that there are strict time period limits in place to make some forms of challenge, and this is a key aspect of our initial discussion. 

Step 2 – Fact find and develop strategy

We’ll make an appointment with you to start to gather the deeper information we will need, including any information you personally have found hard to obtain. Often clients are blocked from seeing the actual Will by the exector/s so we step in to help unearth the critical documents.  

We analyse each situation as every person, every claim and every family is different with unique circumstances and dynamics to take into account, working out the strengths of a claim and the key basis to underpin it. We look at these factors and of course, the financial landscape of the beneficiaries and potential beneficiaries and the overall value of the estate to help weigh up what the anticipated outcome may look like.  During this stage, we outline the expected timeline, costs, essential strategy and anticipated outcome.  

Step 3 – Mounting the claim

Usually this starts with actually trying to resolve the dispute without having to go all the way to file a claim in Court. We believe strongly in making sensible offers of settlement early, which, when taking into account the future anticipated legal costs, almost always works out better financially for all parties. 

We have a host of strategies and tools we can employ here to negotiate and enter into civilised dialogue to look to negotiate a fair outcome before any Court proceedings need to begin. 

Step 4 – Court proceedings

If the early negotiations do not resolve the matter, then we file a claim in the Supreme Court.  Commencing proceedings requires a Writ of Summons together with an affidavit, setting out the evidence that the claimant relies on to establish their claim. 

All beneficiaries of the Will whose share of the estate might be affected by the claim are joined into the proceedings as co-defendants. The affidavit hones in on the key aspects of the claim at this stage to try and move the claim forward as swiftly and cost-effectively as possible and at this stage the Court is keen to see parties settle if they can, encouraging lawyers on both sides to see if they can agree on a set of programming orders that push the matter into a Court ordered mediation as early as possible – even before the defence has a chance to file their opposing story. This method keeps costs down and expedites the potential for an early outcome.

Step 5 – Mediation

This will occur within the Court itself, facilitated and overseen by a Supreme Court Registrar trained in mediation with the goal of reaching a sensible resolution so the matter can be brought to an early end. 

There is a very high success rate at mediation, with the vast majority of claims resolving at this point as clients look to save relationships, time, money and the stress of a trial.  However, some trials are inevitable, especially in particularly complex disputes with many millions of dollars at stake.

Step 6 – Moving to trial

When the parties cannot reach an agreement to resolve on a sensible basis, the final stage is to end up before a judge to make that decision at trial – trials can last as little as one day to several weeks, with months in preparation and planning. Trials can involve many witnesses and a vast amount of evidence, especially when arguments around financial contributions to properties, or whether someone is or is not a defacto spouse needs to be tested. 

Once a trial is finished, the judge will make their decision and hand it down in writing. Appeals can occur post this stage but are quite rare. Where a matter is particularly unique it may need an appeal, which is whether the matter is taken up to other judges in the Supreme Court – not a fresh trial, more a hearing on a point of law that is deemed worthy of review.

Step 7 – Late stage settlement

Of course, settlements can occur at any time during any part of the process without getting all the way to trial and as we’ve stated, our aim will be to get you to settlement as quickly and painlessly as possible.

Navigating the complexities of contesting or challenging a Will

Contesting or challenging a Will is a complex process that involves navigating various legal steps and strategies. As the number of Will disputes continues to rise, it’s crucial to have expert legal advice on your side. Whether you are contesting a Will or defending against a challenge, our experienced team can guide you through each stage of the process, from initial consultations to mediation or even trial if necessary. 

At the heart of our approach is a commitment to pursuing the most efficient and beneficial resolution for our clients, ensuring that assets are distributed fairly and according to the testator’s true intentions. If you find yourself facing a potential Will challenge or need to contest a Will, don’t hesitate to reach out to our Perth lawyers for assistance.