This article is the first in our series answering common questions about Estate and Probate disputes.
Q: Can I challenge a Will if I have been left out of it, or named in it but treated unfairly?
A: Yes, but only if you’re a:
- Spouse – including a defacto and in some circumstances, even a divorced spouse;
- Child – including a step, adopted and even a “defacto step-child”; or
- A dependant of the deceased.
Q: Do time periods apply?
A: Yes. Broadly, a challenger needs to take two steps to ensure their right to claim is preserved.
- Step 1 – A challenger must give written notice to the executor of the intention to challenge, within six months of the deceased’s death.
- Step 2 – A challenger must actually commence court proceedings within nine months of the deceased’s death.
Q: How do I get a copy of the Will?
A: Certain persons are entitled to a copy of the Will if they request it, including a spouse, child or dependant of the deceased.
Q: Is my claim strong or weak?
A: It depends on various factors.
The threshold question is the level of need of the challenger.
If a challenger can demonstrate financial need, how much of the estate they ought to receive involves considering:
- the size of the estate;
- the nature of the relationship between the challenger and the deceased; and
- other “competing” claims.
Q: Who pays for the costs of the challenge?
A: If a challenger is successful with their claim, the legal costs of pursuing it are usually paid by the estate. Orders regarding costs are always, however, at the discretion of the Court.