Contested Wills… the Court procedure

Posted on December 4th, 2018

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 When a person intends to contest a Will, after establishing eligibility, he or she must commence proceedings in the Supreme Court. The District Court has jurisdiction however the Supreme Court is the preferred venue. The FPA list (as it is called) in the Supreme Court is managed by His Honour Justice Hallen. When the Summons commencing proceedings is filed, it is necessary for the applicant to file an Affidavit in support of the claim. A  Court practice note sets out those matters which must be addressed in the Affidavit in support of the claim. The executor of the estate or the administrator (if there is no Will) is then obliged to file an Affidavit in response to the claimant’s Affidavit and also a further Affidavit as to the status of the estate giving information as to its value and the current position in relation to the administration of the estate. Once proceedings have been commenced, all other persons who may be eligible to make a claim are informed of the proceedings to give them an opportunity to be part of the proceedings if they so wish. The proceedings will not be listed for hearing until such time as a mediation has taken place with a view of trying to resolve the claim. His Honour has further “fine-tuned” the process. For example where an estate is worth less than $500,000.00 and there is a claim then as soon as possible after commencement of the proceedings his Honour lists the matter for a Judge appointed settlement conference. At this conference, all parties must attend at the Court with their legal representatives. His Honour speaks directly to the parties (in the presence of their legal representatives) in the open court room to explain to them why it is in their interest that they settle the matter. He then allows them the opportunity (on that day) to have a discussion with a view of trying to reach a resolution. In respect of an estate in which there is a claim and the estate is worth more than $500,000.00 but less than $1,000,000.00, the case is referred to mediation with a court appointed mediator. In respect of estates with a value in excess of $1,000,000.00, the parties must engage in mediation however a private mediator must be engaged by the parties.

The success rate (i.e. achieving settlement of the claim) of mediations and judge appointed settlement conferences is high. If a settlement is achieved then orders are made and the proceedings are at an end and the estate can be finalised taking into consideration those orders.

Robert Lindsay, Consultant at Mullane & Lindsay Solicitors, NewcastleRobert Lindsay is a Consultant at Mullane & Lindsay Solicitors and practises extensively in Wills and Estate Planning, Commercial Dispute Resolution,  and Commercial and Property transactions.  If you require any assistance in these areas please contact Robert Lindsay to arrange a consultation or contact our Newcastle or Tea Gardens office. 

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