Contesting a Will

Without going into all the gory family details, a family member has passed & I'm left as the executor and myself & children are the major beneficiaries. The funds are very low (well under $50k) and one member of the family has been purposely left out of the will, with a disclaimer of why this has happened. This person has been phoning the Solicitor & he says that the costs for them to contest the will, will be too much & this person will just eventually go away. Knowing the vindictive nature of this person, I'm not so sure. Anyway, can someone enlighten me on the costs of contesting a will, and, of course, who pays for this. I'm thinking that the funds would come out of the estate if they are successful, but they are responsible for payment if they are not.

Am I correct?

 

Usually the costs come out of the estate, but not always. However the executor is personally liable for the expenses, but indemnified out of the estate so take care.

On what basis are they wanting to challenge the will? If family provision they must be an 'eligible person' to do this.

 

I'll PM you. It's not something for public viewing.

 

SUCCESSION ACT 2006 - SECT 57 Eligible persons

The aggrieved also needs to consider S59 and S60 of the Act.

 

Proceed with caution. Expenses can blow out very quickly. It is in everyone’s best interests to reach agreement if possible.

Friend (executor) presently going through a lengthy and costly will dispute.
Marg

 

In that case best to seek your own legal advice. I can't advise you via pm.

 

Not after specific legal advice. Just a ballpark on what to expect.

 

I don't really care if I get anything or not......but hoping that the other person doesn't get anything.

 

I will save youse the trouble...just give dem their share.......50k is not worth squabbling about....

 

With all due respect, you don't know the history or the torture that this person put the deceased through. I'd rather the lawyers take the lot than they get any at all. There is very good reason for them to have been written out of the will.

 

I have seen a family member contest a will and get even more than what the family didn't want to give him. The legal costs can easily exceed the 50k and if they win, then the other kids will lose out more money of their share if the legal costs are paid out of the estate. Be careful. In these situations it's often best to think with your head than your heart.

 

Agree with the others, just give them their share plus it sounds like you're being vindictive

 

Like I told Sash....you don't know the history. Please don't comment with silly things like this unless you know all the facts.

 

That sounds very unlikely

 

Money and emotion don't mix well. Seen a few of these, as have others I guess. My thoughts would be to see if I could resign as Executor to allow a more dispassionate party deal with it.

 

Hi Skater
Having been through this with much more at stake. My experience was that the lawyers are out to gouge you.

Firstly get yourself a will kit just to familiarize yourself with the paperwork process. I will PM you.

I found that the lawyers on both sides were there to increase their billing for the sake of more profit. We just had to get an agreement in place to split the super payout and protect our other assets. The first cut of the agreement written by my lawyer was full of holes and I had to get involved just to the agreement up and running. The other side was obviously playing the same game with lots of contact with my lawyer resulting in more billable time on both sides.

In the end it cost both sides a total of approximately $40k just to hand over the super insurance money to her with no further claims on the estate. My lawyer did add value in the first instance when verbally laying out the parameters of the settlement but that is where it stopped.

In the end I fired my lawyer and actually finished the probate myself and hired another lawyer to finalise the signing of the agreement. Another $3k

There are no short cuts and the estate laws are against you. If anybody even has half a chance of making a claim then they are likely to get awarded a share which with $50k won't happen as going to the supreme court will cost to the tune of a $100k+.

I would suggest that you reach a compromise and unfortunately come to terms with paying this person a share. Even when specifically written in the will the instruction will come to nought. just research on the net and you find many instance of those excluded getting their 'share'.

 

There are lots of firms that will contest a will on a "no win, no fee" basis - so it is unlikely a vindictive person will just go away. They probably have the same attitude as you do - rather the estate goes in legal fees than to other beneficiaries.

As a "diligent, impartial and honest" executor it is probably in everyone's best interest to avoid excessive legal fees.

 

You better get legal advice.......these sort of things can get very ugly quickly....remember if you are the executor.....you should be taking the higher ground.....it seems like you might be a tad vindictive....

Who cares what that person has done.......take the higher ground in this....for 50k..it ain't worth fighting for!

 

Just some info and there is a mile of it on the web. Search under 'excluding people from your will'

f any person (the “deceased person”) dies whether testate [with a Will] or intestate [without a Will] and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

Brisbane Family Provision Applications - Corney and Lind