GMH Legal specialises in all forms of Will disputes including; contesting, challenging and defending Wills. Our lawyers work exclusively in this area of law, each and every day.
The law surrounding Will disputes is often complex, with exceptions to almost every rule and no two cases the same. Will dispute law also differs significantly from state to state adding another level of complexity to each case.
For claims of Family Provision under the Succession Act there is a general time limit of 12 months from the date of death. The Court has the power to determine the date of death if it is uncertain. It also has the power to extend the limitation period if sufficient cause is shown.
Costs in cases involving disputed Wills are a matter for the discretion of the Court.
It is often true that the legal costs of both parties in a case concerning a contested Will are paid from the estate of the deceased. While that may be true in many cases, the Court also has the power to order either party to be responsible for their own legal costs or those of the other party. This will most often take place in two circumstances:
- Where the Court believes that the claim that has been brought is unmeritorious (should not have been brought); and
- Where there has been an offer to settle by one party, that offer was not excepted by the other party and the result determined by the Court is in terms that are similar or more favourable to the party making the offer. In other words, where a party has prolonged the litigation by not accepting an offer that the Court thinks they should have accepted, that party may be ordered to pay the costs of the other party from the time of the offer onwards.
Making an application
An application to the Court for Family Provision or to Contest a Will is normally made by way of a Summons issued in the Supreme Court.
A Summons is a document setting out what orders you would like the Court to make if they decided the case in your favour.
Affidavits and Reports
Traditionally the Court has required the evidence in Family Provision and Contested Will cases be introduced by way of Affidavit.
An Affidavit is a sworn statement of the evidence a person is able to give in relation to the case in cases that required an expert to give evidence they would prepare a report which would be annexed to an Affidavit sworn by them.
Most matters concerning Family Provision or Contested Will are resolved by settlement before ever reaching a final hearing.
Cases that have not been able to be resolved and require a determination by the Court are listed before a Judge or an Associate Judge of the Supreme Court.
From the time of handing down of the Judgment, a party wishing to contest the decision has 28 days to lodge a Notice of Appeal.
The Appeal cannot be lodged simply because a party disagrees with the decision but rather it needs to show where the Judge has made an error in applying the law to the facts of the case. Often there can be many points of alleged error in a Notice of Appeal
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