Unsure of who you need and what lies ahead?
Read on to learn the answers to the most common questions asked.
The information below is general information only and cannot replace legal advice.
Q. What’s the difference between a Lawyer, a Solicitor, and a Barrister?
A lawyer is a generic term that refers to anyone who practices law. In Australia, there are two types of lawyers – Solicitors and Barristers.
A Solicitor deals with the day to day legal issues of their clients. Whilst they can appear in court, they typically spend their days out of court. A large majority of solicitors do not practice in litigation and therefore never go to court.
A Barrister is a specialist advocate, meaning they specialise in going to court.
For example, a solicitor writes wills for clients. Barristers do not. A solicitor can write letters on behalf of clients. Barristers cannot.
Q. Do I need a Barrister AND a Solicitor?
Q. When would I need the services of a Barrister for my will or estate dispute?
- give advice on strategy.
- draft the documents needed for court.
- give advice throughout the matter.
- appear in court for you.
- appear on your behalf at any mediation.
Q. I have received less than I expected from my family member’s will. Can I dispute this?
It depends on the type of challenge.
A challenge to the validity of the will can only be made by someone who stands to gain a larger benefit if the will is set aside.
A family provision application (i.e. accepting the validity of the will but asking the court for more money) can only be made by a “spouse, child or dependant”. In Queensland, the definition of “dependant” is quite narrow – for example, siblings cannot bring a family provision claim.
Q. How much does this all cost?
Any litigation is costly. Each matter is completely dependent on its own facts and costs can differ substantially between matters. As a ballpark figure, though, in a family provision application, it could cost $25,000 – $50,000 to get the matter to a mediation. Most matters settle at mediation. If your matter doesn’t, then the next step is usually to go to court for a trial. Trials are expensive and will cost a lot more.
Q. How long can it take to get from starting a dispute case to the court hearing?
Most family provision applications take between 6-12 months to be finalised.
A solemn form proceeding (such as a challenge to the validity of the will) is more like 1-2 years on average.
Q. Are there any other services I should engage while I am going through the process?
Counselling, financial assistance, and family assistance are probably a good idea, although not essential. Most people find that they also want to review their own estate planning needs during or at the end of litigation.
Q. What are the main issues that most people experience when going through a will or estate dispute?
Litigation is very emotionally draining. Estate litigation usually comes at a time when people are also grieving the loss of a loved one. Feelings of loss, hurt and betrayal can be emphasised and heightened during this process.