Disputes about deceased estates are very common. Most people will know or have heard of someone who has had to bring or defend a claim.

There are many different types of claim that can fall under the banner of “contesting a will” or “contesting an estate” and it’s important to identify the relevant type of claim when trying to work out whether or not to contest.

The main types of claim relate to:

  1. The question of whether a will is valid
  2. A family member seeking more than what has been provided for them
  3. Making sure the executor or administrator is properly administering the estate
  4. Asking the court to stop someone from being the executor or administrator
  5. Determining the correct meaning of the will, and potentially correcting any drafting errors in the will
  6. Adjusting the distribution of the estate because of how a power of attorney has been used

There are also potential claims regarding superannuation and trusts, but those claims typically sit separate to the will or estate.

Some claims are much harder to succeed with than others. It is not at all unusual for people to start out wanting to prove that a will was invalid only to find that they won’t be able to provide sufficiently strong evidence to satisfy a court that the deceased lacked capacity to make a will, or that a family member unduly pressured them to change their will, or as the case may be.

By far the most common type of claim is the second type listed above, which lawyers call family provision claims. For those matters the court looks to whether particular classes of family members have been adequately provided for in the will (or even in the absence of one) and can make orders for further provision.

I will discuss many of the different claims in more detail in separate blog posts, but for now I want to focus on the real question underlying any decision to contest an estate: “is it worth it?” and the answer to that is found in two other questions: “What will it achieve?” “What will it cost you?”

Claims about whether a will is valid or for further provision from an estate frequently do have major financial repercussions for claimants, and so there may well be a great deal that can be achieved in that sense.

The ordinary rule in litigation is that the unsuccessful party to a court action must pay the successful party’s costs (there are limitations and many exceptions). This is a very significant risk for normal litigation, but often does not apply for estate disputes where the courts are more willing to allow the costs of successful parties to be paid out of the estate. Most family provision cases with any merit do resolve by negotiation and thus most claimants with a case do end up receiving something additional from the estate.

Nevertheless, a claimant does face substantial cost (as in many thousands or tens of thousands of dollars) in bringing a claim and may not get any of that back. the likelihood of having to pay the other parties’ costs does vary between the types of claims and the types of allegations you might raise.

One near certainty is that bringing a claim is pretty much guaranteed to cause substantial damage to the relationships within the family. Even where it’s already too late to salvage those relationships, the whole process can be very long, stressful and painful.

Many claimants have a legitimate grievance against how they have been treated in the past, or by the will. Although estate claims do deal with the prior conduct of family members, none of them are good means to obtain vindication for past wrongs, because that’s not what they’re about. Instead, they are about determining the correct will, approach or amount of provision.

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