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:

  1. the size of the estate;
  2. the nature of the relationship between the challenger and the deceased; and
  3. 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.