A study of will contests in Australia has found that on average 74% of Family Provision Claims in Australia are successful. In Queensland, the success rate is even higher with 77% of contested will claims succeeding. It’s worth keeping in mind that the vast majority of family provision claims settle before trial which means the success rate of contesting a will is far higher than 74%.
The high success rate is not really surprising. When someone comes to our law firm who has been left out of a will or believes they were unfairly provided for, our Will Disputes Lawyers perform a case assessment which involves carefully assessing the positives and negatives of the claim. Only if we believe the Court will rule in our client’s favour will we take on the case. When we take on a claim we back our client’s with a no win, no fee policy which means they only pay when we win.
If you or someone close to you is considering contesting a Will, schedule a free, no obligation consultation with an Estate Dispute lawyer today. If your claim has merit, we’ll help you contest a will no win no fee. Call us on 07 3073 2405 or contact us via form or email and we’ll get in touch.
Claims by a spouse or former spouse
In Queensland, 5/5 or 100% of the family provision claims by a spouse were successful in the study. Further findings were that such claims still had a high prospect of success even where the value of the estate was less than $500,000.
This should not come as a surprise as the will maker’s duty to his or her spouse is considered “paramount”.
Claims by Children
In the study, 71% of Family Provision Claims in Qld by a child or children of the deceased were successful.
Claims by Adult Children
The overwhelming majority of these claims were made by adult children. This is most likely because the data only covers claims heard by the Supreme Courts across Australia. The absence of claims by minors in this study is probably not because they don’t make claims. Rather, it’s likely that those claims involving minor children were settled prior to Court as their need may be more apparent than the need of an adult child with assets. That’s not to say claims by adult children should not be pursued: the majority of claims by adult children Australia-wide were successful.
Claims by persons other than immediate family
While the eligibility criteria for who may make a family provision application is narrow, the study suggests if eligibility can be established, it may be worth contesting as 83% of claims made by people “other” than the traditional applicants (spouse, children, extended family) were successful. It is worth noting that in each successful case by someone other than close family, the value of the estate exceeded $1 million.
What Factors Determine the Success of a Contested Will Claim?
Some of the factors involved in determining whether further provision from the deceased’s Will should be made include:-
- the financial circumstances of the applicant including their current and future financial needs
- if the applicant is financially supported by any another person
- any physical, intellectual or mental disabilities
- the wishes of the deceased
- the applicant’s age
- any contribution by the applicant which increased the value of the estate
To read more about which factors the Courts consider, and eligibility to contest a will, read our Guide to Family Provision Claims in Queensland or get in touch for a free case assessment.
At Will and Estate Lawyers Australia, we also defend Family Provision Claims and will challenges so we’re experienced at analysing a claim from every angle to critique it’s prospects. We don’t take on claims we don’t believe in. We don’t blindly defend claims which will inevitably succeed if we can secure our client’s a better outcome by settling the claim without incurring big legal fees. All this is to say whichever side of the fence you fall on, we’ll be in your corner to fight your position. Contact us today for a free no obligation consultation and case assessment to see if we’re the right Contested Wills and Estates Lawyers for you.
Reference: White, B., Tilse, C., Wilson, J., Rosenman, L., Purser, K., Coe, S. (2015). Estate contestation in Australia: An empirical study of a year of case law. UNSW Law Journal, 38(3), 880.
