At Kruger Law, we often receive questions about Estate and Probate disputes.
This article answers some of the more common ones.
Can I challenge a Will if I have been left out of it?
Yes, but only if you’re a:-
- Spouse – including a defacto;
- Child (including step-child); or
- A dependant
of the deceased.
How do I challenge a distribution under a Will?
Time periods apply, so it is important you seek legal advice.
Generally, there are two initial steps:
Step 1 – A challenger must give notice to the executor of the intention to challenge, within six months of the deceased’s death.
Step 2 – A challenger must commence proceedings within nine months of the deceased’s death.
What does the court look at when deciding whether a claim should succeed?
The starting point is the level of need of the challenger.
If a challenger demonstrates financial need, how much of the estate they ought receive involves considering:-
- the size of the estate;
- the nature of the relationship between the challenger and the deceased; and
- other “competing” claims.
Who is responsible for the costs of the challenge?
The costs of court proceedings are always at the discretion of the Court.
Typically, however, If a challenger is successful with their claim, they can reasonably expect that the court will order their legal costs of pursuing the claim be paid by the estate.