Calculated Fisk: The who, what, where and how of challenging a Will

The legal scenarios playing out each week in Fisk might seem like things that could never happen in real life.  Truth is – they do.

The Will dispute Helen Tudor-Fisk resolved in episode five was actually a fairly typical scenario for a wills and estates lawyer.

The deceased had two children but chose to leave 100 per cent of the family farm to just one child, the son.

The daughter who had lived and worked on the family farm her whole life was left nothing except the family bible.

We can assume the daughter has challenged the Will, most likely arguing she wasn’t provided for adequately in the Will.

Negotiating an outcome

Helen’s firm Gruber & Gruber was acting for the son in this case.

We heard the deceased was “old school” and wanted the property to be handed down the male line.

Ray’s boss tells Helen this reasoning would never stand up in court, and suggests she get on the front foot and propose an offer.

After negotiations with the other side, they settled on a 60/40 split, with the son to receive 40 per cent of the estate.

While the circumstances of each family’s case is different, a settlement in this range is realistic.

What is also true to life is how the matter settled before it reached Court. 

More than 90 per cent of will disputes settle before Court, most often at a mediation.

Who can contest a Will?

If, like the daughter in this Fisk case, you want to challenge a Will because you have been left out or because you are not happy with the size of your gift, you need to show you are eligible to bring a challenge.

Not everyone can challenge a Will. Most challenges are made by children and partners of the deceased.

If you are not a child or partner of the deceased then you should get advice about whether your circumstances make you eligible to bring a challenge. 

When can I contest a Will? 

You are able to contest a Will if you are faced with a Will that:

• Excludes you completely or leaves you with inadequate provision.
• Was prepared as the result of undue influence of another person.
• Is not clear.
• You believe is not the last Will.
• Appears to have been changed by another person.
• Was written by someone who wasn’t mentally able.

How do I challenge a Will?

If you decide to contest a Will, you need to lodge an application with the court within the timeframe required in your state.

It is a good idea to seek legal advice at this point because the law surrounding Will disputes can be complex and the time limits for bringing your challenge differ from state to state.

Seeking legal advice early on in the process can help you understand the laws that apply to the Will that you want to challenge.

Seeking further provision 

If you don’t think you’ve been properly provided for in a Will, then a further provision claim may be considered.

In these types of claims, the following factors are relevant:

• The nature of your relationship with the deceased.
• How long you knew them.
• Whether they had any responsibility towards you.
• How much you earn and what your financial needs are.
• If you made any contributions to the welfare or estate of the deceased.
• Personal details, like your age and general behaviour toward the deceased.

Where do I start?

When faced with a Will dispute it’s common to feel unsure or overwhelmed by all the legal talk and tasks.

You may wonder whether it is all just too hard - but don’t panic. Most disputes never get to court and are settled by negotiation at an out-of-court mediation.

All you really need to know before you challenge is whether you have a case.

To help you figure this out, talk to a Will disputes lawyer who will explain your legal rights and how to navigate the legal system so you get the best possible result.