Contesting a Will and Estate Litigation FAQs

Can I make a claim against an estate?
Some of the reasons you might consider making a claim against an estate include:
  • You don’t feel the testator has treated you fairly when they divided their estate.  For example, your work or financial contribution may have increased the value of the estate and that has not been reflected in the will.
  • You may have a special need (eg. ill health, disability) which should have been taken into account in the division of assets.
  • You may have cared for the deceased prior to their death.
  • A family member may have received an equal share of the estate despite treating the deceased badly or having no contact with them over the years.
  • The terms of the will are unclear.
  • You don’t think the terms of the will reflect the deceased’s wishes.
  • You are worried the deceased was coerced into making the will by someone who exerted undue influence.
  • The deceased did not have capacity to make the will.  For example, they had dementia or were under the influence of drugs or alcohol at the time the will was made.
  • The will was not properly prepared and executed.
 
How do I make a claim against an estate?
Notice needs to be given to the executors or their solicitors and, usually, proceedings filed in court.
 
Strict time limits apply – you need to get expert advice now about the time limits which apply to you.
 
How do I defend a claim against an estate?
If you are an executor of an estate and someone makes a claim against the estate, you will need expert legal advice about defending the claim and ensuring you carry out your responsibilities as executor.  Your primary responsibility is to uphold the will.  This may involve obtaining evidence, preparing affidavits and filing documents in court.
 
If you are a beneficiary of an estate against which a claim is made, you may need to seek your own advice about how to protect your position.  
 
Strict time limits apply - you need to get expert advice now about the time limits which apply to you.
 
Do I need a lawyer to make, or defend, a claim against an estate?
No – you can handle a claim yourself.
 
Estate litigation can be complicated.  Other parties involved in the litigation are likely to have lawyers.  Those lawyers cannot provide you with independent advice. You may find yourself at a disadvantage if you do not have legal representation.
 
What will a claim against an estate cost?
This will depend on the type of claim, the complexity of the will, the size of the estate, whether other beneficiaries are contesting the will, the attitude of the executor and many other considerations.
 
Before you decide to pursue a claim, we will discuss what will be involved and provide an estimate of the likely costs.  We will also discuss how we will charge for our services.
 
Our costs will be reasonable – we will discuss them with you in detail before you instruct us to act on your behalf and will enter into a Costs Agreement with you.  We strongly recommend you seek independent legal advice about the Costs Agreement before you sign it.
 
If we think your claim has reasonable prospects of success, we may consider acting on a deferred payment basis.  This means we will only charge you for our professional fees when your claim is finalised.
 
Will my legal costs be paid from the estate?
If your claim is successful, some of your costs will be paid from the estate.
 
In some circumstances, some of your costs may also be paid from the estate even if the claim is unsuccessful.  This depends on the nature and merit of the claim.
 
Even if the estate is ordered to pay your costs, it will not cover your entire costs.  The difference will be paid from your settlement or judgment monies.  We will discuss this with you in detail when we give you our initial Costs Agreement and before you instruct us to act on your behalf. 
 
How long does it take to finalise a claim against an estate?
This is impossible to say without knowing a lot more about you and your claim.
 
Some relevant factors include:
  • the size and complexity of the estate
  • the number of beneficiaries and the nature of their interests
  • whether there are competing interests
  • the nature of the will and evidence of the testator’s intentions
  • the availability of supporting evidence
  • whether parties are separately represented
  • whether the parties are willing to negotiate
Will I need to go to court to make, or defend, a claim against an estate?
Many claims against estates are settled prior to court.  However, even if the parties agree to resolve a claim, any agreement needs to be approved by the Court.  
 
If a claim cannot be resolved, the Court will make a decision after a trial at which all relevant evidence is presented and submissions are made on behalf of the parties.