Legal Challenges to the Will (Estate) and their Legal Costs
What is a challenge?
Here we talk about legal challenges to the estate of a deceased by disgruntled beneficiaries or people who feel that they should not have been left out of the will.
These challenges should be instigated promptly by the challengers, after the death of the deceased.
The challengers should appoint solicitors, who will notify the executors of the deceased’s will of the challenge.
Challengers can include a defacto partner of the deceased, or a child or children, or some other party who can prove a valid claim against the estate.
Challengers need to first obtain a copy of the deceased’s will, and there are rules about who is or is not entitled to a copy of the deceased’s will.
Challengers need to substantiate their claim to a share or greater share of the assets of the will based on a range of factors that will be advised to them by their solicitors, for example, that the son of the deceased had relied on financial support from his deceased father during the deceased’s lifetime.
There is a considerable body of case law around who is entitled to a share of a deceased’s estate and to what extent. Therefore, it is necessary to seek legal advice at an early stage and not make any presumptions as to your entitlements as a potential challenger.
Like Probate, the legal costs of any challenge are paid for out of the assets of the estate, before final distribution to beneficiaries, as determined by the court. These costs include those of the executors of the will in defending the challenge or claim, and those of the challengers.
In view of the legal costs involved: the smaller the pool of assets, the stronger the challenger’s claim needs to be. This is for the courts to find favour with the challenge.