Australian Will Disputes
Who can contest / challenge a will?
We have prosecuted successful claims on behalf of widows, children, adopted children, defacto wives, defacto children, grandchildren, nephews, and nieces, divorced and/or former wives, mistresses, gay and lesbian lovers, carers, sex workers, neighbours, close friends, etc.
From 1 January 2015, the categories of people who can bring these claims have become more restrictive. There have been significant Court decisions relating to step-children and the rubbery “member of the household” category.
There is no difference between “challenging” a will and “contesting” a will. “Challenging a will” and “contesting a will” are simply different phrases to describe the same legal processes.
What are the 3 ways of contesting a will?
The Will is not of the deceased
First, you can say (with evidence that will satisfy a court) that the will is NOT the will of the deceased because:
the deceased was not of “sound mind” when the will was signed because of mental incapacity (dementia, psychological or psychiatric condition, or whatever)
the deceased was unfairly persuaded by some relative, carer, etc to make the will in circumstances where there is suspicion. Who drove the deceased to the will making /signing appointments? Who was present in the room? Who gave the instructions for the content of the will etc?
Second, you can bring a Family Provision claim saying that the deceased owed a moral duty to include you in the will and that you are in financial need.
We have prosecuted successful claims on behalf of widows, children, adopted children, defacto wives, defacto children, grandchildren, nephews, and nieces, divorced and/or former wives, mistresses, gay and lesbian lovers, carers, sex workers, neighbours, close friends, etc. The categories of potential claimants were meant to be narrowed by legislation effective 1 January 2015, but the full extent of that narrowing has yet to be finally refined and defined as individual cases wend their way through the Courts. In Victoria, moral duty matters.
If you have just won Tattslotto, we will tell you not to bother.
To bring a family provision claim, you need to demonstrate financial need.
Financial need is a flexible concept. We have conducted claims on behalf of beneficiaries entitled under wills to benefits in excess of $2 million. (But the total estates were worth in excess of $20 million). So, it is all relative. Each case depends on its own unique circumstances.
Third, you can eat the elephant by starting to nibble at the toes. If the evil brother/sister/defacto/carer etc has taken advantage of the deceased prior to death and engineered transfers of assets, those transactions can be investigated and set aside in appropriate circumstances.
What does no win/no fee/no risk mean?
While we are investigating whether or not we believe you have a good claim, you have a free lawyer. You do not pay costs and you do not pay expenses.
Once we are convinced that you have a good claim, we will offer you a formal written “no win/no fee/no risk” costs agreement for your approval.
“No win/no fee” means what it says.
Unless your claim is successful, you do not pay costs and you do not pay expenses.
“No risk” is a Constable Connor invention. If we get it so wrong that you lose your claim, you obviously do not pay costs or expenses under the “no win/no fee” approach. However, if we get it so wrong that the court decides that you should pay the costs of other parties to the litigation, then under our “no risk” approach, you do not pay those costs. Rather, they are paid by Constable Connor as is provided for in our standard written fee agreement.