|

12 Sep WILL DISPUTES

Posted in by
0 Likes

Left out of a Will? Let’s talk.

While everyone has the right to decide how their assets will be distributed following their death, treatment of family members is generally covered by certain moral obligations and responsibilities.  There are laws that exist to protect people who have been unfairly treated in a Will.

Family provision legislation in each State allows the Court to override the terms of a Will so as to provide proper maintenance and support for an eligible applicant.

 

QUEENSLAND

In Queensland, the legislation governing family provision claims is the Part 4 of the Succession Act 1981.

An eligible applicant must make a claim within 9 months from the date of death of the deceased. However, the Executor or Administrator is able to distribute the estate after 6 months of the deceased’s death, if they have not been notified by the applicant of a potential family provision claim.

Am I eligible to contest a Will in ?

Under section 41(1) of the Succession Act 1981, the following people are classified as eligible applicants for a family provision claim:

  • Spouse: a husband, wife or defacto partner (including same sex partners) of the deceased at the time of death. Also includes a former spouse or former defacto partner of the deceased who was dependant.
  • Defacto Partner: one of two persons who are living together as a couple on a genuine domestic basis, irrespective of gender for a continuous period of at least 2 years ending on the deceased’s death. They must not be married to each other. A number of factors are considered to determine a “genuine domestic basis”.
  • A Dependant Former Spouse or Defacto Partner: former husband or wife who was divorced from the deceased; not remarried; and at the time of death was either receiving or entitled to receive maintenance from the deceased. A former defacto partner may be eligible if they are dependant, that is, they are the parent of a minor child of the deceased who was entirely or substantially maintained by the deceased as at the date of death.
  • Child: a minor or adult child of the deceased including a foetus as at the date of death provided such a child is born and remains alive for 30 days. Also includes a stepchild and adopted child.
  • Stepchild: a child of the spouse of a deceased including a defacto spouse. Under the Act, only divorce terminates the relationship of stepchild and step-parent. Therefore if this occurs, a stepchild is not eligible in that instance.
  • Parent: the parent of a deceased may be eligible if they were dependant on the deceased for maintenance or support as at the date of death.
  • Dependant: any person who was wholly or substantially maintained by the deceased at the time of death and being either; a parent of the deceased; the parent of a minor child of the deceased; or a minor.

Frequently Asked Questions

What is the process of contesting a Will?

Every case is different.

The procedure of contesting a Will depends largely on the strategy we employ in running your case.

It also depends on the attitude of the opposing party:

  • If the opposing party is willing to enter into settlement negotiations prior to the commencement of proceedings, then an early resolution of the matter can be explored.
  • If the opposing party refuses to enter into negotiations, prior to the commencement of proceedings, then we will commence litigation on your behalf.

Below is a rough guide of how most Will dispute cases will proceed:

  1. Investigate the nature of the estate and collate relevant information in support of your case
  2. Notify the personal representative of the Estate or their solicitor of your intention to commence a family provision claim
  3. Prepare your evidence in support of your case
  4. Issue proceedings for your matter to be referred to a compulsory Mediation
  5. Exchange evidence with the opposition
  6. Attend the Mediation to negotiate a settlement with the opposition. Approximately 98% of cases settle at Mediation and a Court trial is therefore not required. In the event the matter does not settle, negotiations can still take place after the Mediation
  7. Prepare your case for a Court trial

Once you have made the decision to contest a Will, you should obtain legal advice as soon as possible to discuss your prospects of success along with any other enquiry you may have.

What grounds can I contest, challenge or dispute a Will?

Some of the grounds include:

  • Being totally excluded or inadequately provided for under the Will or on intestacy
  • The Will was not executed correctly by the Will maker
  • The Will that was executed was not the last Will of the Will maker
  • The Will maker lacked capacity at the time of executing the Will
  • The Will maker was unduly influenced to make the Will
  • The Will maker did not know, understand or approve the contents of the Will
  • The Will was made in suspicious circumstances or there is evidence of Will tampering
If our matter goes to Court, what factors will they consider?

The Court takes the following factors into account when determining whether provision should be made and the amount of the provision to be made:

  • The nature and length of the relationship with the deceased
  • Any obligations the deceased had to the applicant or the beneficiaries
  • The size and nature of the estate and liabilities
  • The present and future financial resources and needs of the applicant and beneficiaries of the estate
  • The financial circumstances of another person the applicant is living with
  • Any physical, intellectual or mental disability of the applicant or beneficiary
  • The applicant’s age
  • Any contribution of the applicant to building up the estate or welfare of the deceased or the deceased’s family
  • Any benefits previously given by the deceased to any applicant or to any beneficiary
  • Any evidence of testamentary intentions of the deceased
  • Whether the applicant was being wholly or partly maintained by the deceased and the extent and the basis of that dependency
  • The liability of any other person to maintain the applicant
  • The character and conduct of the applicant or any other person
  • Any relevant Aboriginal or Torres Strait Islander customary law
  • Any other matter the Court considers relevant
How do I obtain a copy of the Will?

Under section 33Z of the Succession Act 1981, the following people are entitled to a copy of the deceased’s Will:

  • Any person referred to in the Will
  • Any person named or referred to in an earlier Will as a beneficiary
  • Spouse or defacto partner of the deceased
  • Child of the deceased
  • Parent of the deceased
  • Any person who would be entitled to a share if the deceased died intestate
  • Any creditor who can produce evidence of a claim
  • Any eligible person who has a claim against the estate

If you fall within any of the above categories, you can write to the Executor or Administrator of the Estate and request a copy the deceased’s Will.

If the Executor/Administrator refuses to provide you with a copy of the Will, and a grant of Probate or Letters of Administration has been obtained, you can apply for a copy of the file from the Supreme Court of Queensland (Probate Registry) for a fee. The file will usually include the deceased’s Will, Death Certificate, Inventory of Assets and Liabilities and other pertinent documents.

No Comments

Sorry, the comment form is closed at this time.

PLEASE SELECT THE STATE IN WHICH THE DECEASED PERSON RESIDED

  • VICTORIA
  • NEW SOUTH WALES
  • QUEENSLAND
  • SOUTH AUSTRALIA
  • WESTERN AUSTRALIA
  • TASMANIA
Latest News
Contact Us
Email Us1300 600 935

If you’d like to keep up-to-date with marshalls+dent+wilmoth.

Follow us on Social Media!

TESTIMONIALS

Myself, and my mother & father in-law couldn’t be more thankful for Arkin’s assistance and services from a Will Contest they recently settled through Arkin. Originally, my Father-in-Law wasn’t going to contest his late Mother Will, however, with encouragement of his close family, he allowed his wife to look for a Lawyer… I remember as I opened the website, there were 3 words which caught my eye;

“SMART. ETHICAL. PRACTICAL.”

I say with high praise, that Arkin stood for every one of those words!

From the first time I spoke with him, he actually let me speak. He listened. He understood. Arkin was able to build an immediate rapport with everyone of us he spoke with, which established trust. I believe that is a rare trait these days.

We were always kept up to date, and he was always open and honest about everything and the stages the case was at. We also had the pleasure of dealing with his assistant, Angela, who was just as professional and helpful. We will be recommending marshalls+dent+wilmoth lawyers, to anyone we know who may have a legal matter arise in the future

-Samantha

WILL DISPUTE (VIC)

Sandy & Arkin worked tirelessly to ensure everything was included which led to an excellent conclusion. They are to be commended that the best result was achieved- with sincere thanks

-Jill

WILL DISPUTE (NSW)

Both Sandy & Arkin I found to be very articulate in both emails and verbally in clarifying the issues in our case. I found them to be both sensible and caring in what is a difficult emotional area of law. Clients can get upset, angry, disappointed and being able to handle clients has to be made clear from the start. Fortunately we were able to do that. Certainly being patient helps towards a successful outcome. Thank you. We are exceptionally satisfied

-Sally

WILL DISPUTE (NSW)

Many thanks to you and your team for your correspondence, concern and settling this sensitive case on behalf of my family. I highly recommend your expertise without hesitation to others at their lowest point in this area of will contesting. Sandy you are a valuable asset to marshalls+dent+wilmoth

-Ilona

WILL DISPUTE (QLD)

Sandy and her team recently helped my sister and I with issues we were facing with our late father’s Will. After toying with the various courses of action we could take in contesting our late father’s Will, Sandy advised us of all the issues we faced if we went ahead. Although we decided against contesting the Will, she helped us achieve a good outcome, one which we would never have foreseen. Thanks again Sandy

-Karyn

WILL DISPUTE NEGOTIATIONS (VIC)

Sandy you have been outstanding for all the work you have done and the way I have been treated. I couldn’t have had a better person battling for me- You are great at what you do and you work from the heart. Don’t change as you are a great lawyer. Good luck in the future!

-Maria

WILL DISPUTE (VIC)

A lovely professional manner by both Sandy and Arkin. They made me feel extremely comfortable at this awful time!

-Blair

WILL DISPUTE (NSW)

Sandy knows how to sort the wheat from the chaff. A skill surprisingly lacking in some solicitors!

-James

WILL DISPUTE (VIC)

I am very happy with the outcome of the case. Sandy always kept me up to date with all the procedure and anything that changed. Very well handled in all aspects. Sandy is an outstanding solicitor, very well spoken, and nothing seemed to be a problem if I rang about something I was not sure of. Thank you very much for all your help. Outstanding outcome of my case

-Josep

WILL DISPUTE (VIC)

I am exceptionally satisfied. Sandy and Arkin took me on the journey through the legal terrain particular to my matter in the manner of expert tour guides. As a very special duo they create a highly professional, sensitive and responsive atmosphere and structure that step by step enables the attainment of clear and practical legal objectives in a non-intimidating manner that transcends that encountered in the normal single matter law-firm/client situation.

-Raymond

WILL DISPUTE (VIC)