So, you have read the pages 5 Steps to Contesting a Will, you have spoken to a lawyer who specialises in the area who has confirmed you have a case.
What happens now? Well, you can expect your case to take the following path.
Firstly, we need a copy of the will, details of the assets and liabilities of the estate and an indication as to whether probate has been applied for or granted. Importantly, what is in the estate? And how much is it worth? Property? Shares? Is there any superannuation? Any debts? Has probate been applied for? Is there any notional estate?
We call this the Investigation Stage. It involves sending a polite letter of enquiry to the executor requesting information about various aspects of the estate. Included in this letter is often a query as to whether he or she is interested in discussing an early settlement of the matter. We do not charge for the Investigation Stage.
If the Investigation Stage confirms that: a) you have a claim; and b) no offers to settle are forthcoming the next steps are to …
This is where we work together to obtain a statement (otherwise known as an affidavit). It includes a history of your relationship with the deceased, details about your financial position and your health, the health of your spouse and any dependents.
As many of our clients can't make it to the Brisbane, Sydney or Melbourne offices, we include a visit to your home, wherever it is in these three states, as part of our Fixed Fee Costs Agreement. We find it beneficial to sit down face-to-face at this stage.
Once we have your statement we advise the court that we are ready to make a claim. We do this by filing a summons. It is a document that formally advises the court you are bringing a claim. When we do this the court opens a file and marks a date in the calendar, about a month or so after the Summons is filed. This date is called a directions hearing.
A directions hearing is not a real hearing. It is just a day where the judge opens your court file and asks the lawyers any questions he has before telling them what their mediation date will be. The judge will also tell the lawyers what he expects them to do to make sure the case is ready for mediation. That is, to make sure all the relevant information is available.
This is the point at which most claims are settled. You will attend the mediation rooms with your solicitor and barrister, the executor, his or her solicitor and barrister, and an officer of the court.
Have you ever been to Bali? Ever haggled over the price of a used car? Well, mediation is a bit like that. Except the lawyers do the talking. In about 8 out of 10 cases a judge will never learn about your case because it will settle out of court.
Remember, a specialist lawyer can walk you through these steps far more quickly and easily than a lawyer who is unfamiliar with the area. A specialist knows how the court expects affidavits to be prepared, what the judge expects of you, what to look for in the executor's evidence and, importantly, what a good settlement would be.
NB: The above outlines procedure in New South Wales. There are slight procedural differences in Queensland and Victoria.
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