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07 Sep WILL DISPUTES

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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.

 

VICTORIA

In Victoria, the legislation governing family provision claims is the Administration and Probate Act 1958. Amendments to the Act became operative on 1 January 2015.

An eligible applicant must make a claim within 6 months from the date of the grant of Probate or Letters of Administration.

Am I eligible to contest a Will in ?

Eligible applicants include:

  • Spouse: person married to the deceased as at the time of death.
  • Domestic Partner: a registered domestic partner under the Relationships Act 2008; an unregistered domestic partner living with the deceased as a couple on a genuine domestic basis for at least 2 years; or a parent of a minor child of the deceased.
  • Former spouse: a former spouse who must, as at the date of death, have been able to take proceedings under the Family Law Act but the deceased’s death prevented them from commencing or continuing the proceedings.
  • Former domestic partner: a former domestic partner who must, as at the date of death, have been able to take proceedings under the Family Law Act at the time of death but the deceased’s death prevented them from commencing or continuing such proceedings.
  • Child: a child of the deceased including an adopted child.
  • Stepchild: either a minor or adult stepchild of the deceased as at the date of death. Assumed child: a person who believed they were a child of the deceased and treated by the deceased as a natural child.
  • Grandchild: a child of the deceased’s own child. A grandchild must have been wholly or partly dependent on the deceased for proper maintenance and support.
  • Spouse of a domestic partner of a child of the deceased who died within a year of the deceased’s death: a son-in-law or daughter-in-law of the deceased who was wholly or partly dependent on the deceased for proper maintenance and support.
  • Registered caring partner: a person who at the date of death was in a registered caring relationship with the deceased pursuant to the Relationships Act 2008. A registered caring partner must be wholly or partly dependent on the deceased for proper maintenance and support. “A registered caring relationship” involves two adults who are not a couple or married to each other, and who may or may not otherwise be related by family, where one or both of the parties provide personal or financial commitment and support of a domestic nature for the material benefit of the other, not for fee or reward and irrespective of their genders and whether or not they are living under the same roof.
  • Member of the household: any person who was a member of the household of which the deceased was a member at the date of death; or a former member of the household who would have been likely to again become a member of the household in the event the deceased had not died. A person claiming under this category must have been wholly or partly dependent on the deceased for proper maintenance and support.

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?

Approximately 98% of cases settle at mediation.

However, should your case be heard before a Judge under section 91 A(1) of the Administration and Probate Act 1958, the Court must consider the following in making an order for provision:

  • The contents of the Will
  • Any evidence of the deceased’s reasons for making the dispositions under the Will
  • Any evidence of the deceased’s intentions in relation to providing for the applicant

Under section 91 A(2) of the Administration and Probate Act 1958, the Court may consider the following in making an order for provision:

  • 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
  • Any physical, mental or intellectual disability affecting the applicant or any beneficiary of the estate
  • The age of the applicant
  • 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
  • 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
  • The effect of making a family provision order on the other beneficiaries
  • Any other matter the Court considers relevant

Section 91(4) of the Administration and Probate Act 1958, sets out the factors the Court must consider when determining the amount of provision to be awarded to an applicant.

How do I obtain a copy of the Will?

Under section 50 of the Wills Act 1997, 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 of the deceased
  • Domestic partner of the deceased
  • Parent, guardian or child of the deceased
  • Any person who would be entitled to a share if the deceased died intestate
  • Any parent of a minor referred to in a Will or who would be entitled to a share if the deceased died intestate
  • Any creditor or person who has a claim against the Estate and can produce evidence of such a claim

If you fall within any of the above categories, you can write to the Executor or Administrator of the Estate and request a copy of 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 Victoria (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.

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  • VICTORIA
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  • TASMANIA
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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)