Contesting a will can be a stressful and complicated process. If you believe you’ve been unfairly left out of a family member or loved one’s will, you may be wondering if you can save money by contesting a will without a lawyer.
While it is legally permitted, handling a will dispute yourself puts you at risk of overlooking legal obligations or making mistakes – and that can end up cost you more in the long run. We’ve outlined the typical process for contesting a will, as well as just a handful of reasons why challenging a will is best left to the professionals.
What is the process for contesting a will?
Generally speaking, there are five stages to challenging a will:
1. Appointing a lawyer
Although not legally required, most people consult with a legal professional during the early stages of the dispute process to determine their eligibility and requirements for disputing a deceased’s will.
2. Collating evidence
To successfully contest a will, it's crucial to collect as much accurate and relevant evidence as possible regarding your relationship with the deceased and your entitlement to a share of their assets. A lawyer can talk you through the required criteria that must legally be proved to contest a will.
3. Negotiating a settlement
In some cases, a settlement may be reached by negotiation between parties before the will dispute goes before the Court. Settling before court proceedings begin can be a cost-saving measure, but it’s nonetheless important to seek professional legal advice at this stage to ensure you are protected should the other party decide to go against your claim in Court.
During the mediation stage, your lawyer must file initiating documents in the form of summons and affidavits. As part of the mediation process, the executor of the estate is required to provide a list of the estate's assets, their value of each and the current total value of the estate.
5. Court proceedings
If the will dispute goes to Court, the Court will determine:
- If you are eligible to contest the will
- Whether you have already received a reasonable amount of assets (known as “adequate provision”)
- What, if any, further provisions should be made
There are a wide range of factors that the Court will consider when making a decision, which is why it’s advisable to have legal representation present.
Can I represent myself in a will dispute?
The short answer is yes, but there are several reasons why contesting a will on your own isn’t recommended:
1. There are myriad legal obligations to consider
Contesting a will on your own increases the chances of you not meeting all your legal requirements or overlooking key evidence that could be used to prove your case. A lawyer with experience in contesting wills will be well versed in the nuances of the legal system and what’s required for your case.
2. A settlement may be reached before the dispute goes to Court
Many will disputes are settled before they reach Court. Having a lawyer on your side is crucial for navigating the mediation process and helping you achieve a favourable outcome as quickly as possible.
3. Will disputes are often stressful and emotionally-taxing
Losing a loved one or family member is difficult at the best of times, let alone having to worry about contesting a will. Enlisting the guidance of a lawyer takes the pressure off and gives you peace of mind that the dispute is being handled by a professional.
4. Costs can add up
While you might think the average cost to dispute a will is lower if you represent yourself, you'll still need to pay upfront costs such as court charges, administration costs and investigation expenses when pursuing a claim. And, if you dispute a will yourself and your claim is unsuccessful, you won’t be able to recoup these costs.
Challenging a will is stressful, but enlisting the guidance of a legal professional can help you go through the process as efficiently as possible. Call us today to arrange a free consultation with one of our wills and estates lawyers, or view our will dispute checklist for more information.