Estate Disputes
How can we help with your Estate Dispute?
If you are thinking of making a claim against a will or are the executor of an estate where a claim has been made, we can advise you on how best to proceed without unnecessary costs being incurred and with the minimum amount of disruption and stress for all parties.
We can advise you on:
- whether any document or record constitutes a will;
- the validity of a document that purports to be a will;
- your eligibility to make a family provision claim;
- whether to defend an application for a family provision claim;
- whether there has been a breach of fiduciary duty or any other obligation in the administration of an estate.
We can act for you in:
- making or defending a contested application for a grant of probate or letters of administration;
- contesting a will on the basis of undue influence, fraud or lack of testamentary capacity;
- making an application for a statutory will;
- making or defending a family provision claim;
- making an application for the construction or rectification of a will;
- proceedings involving a breach of fiduciary duty or other obligation in the administration of an estate, including the revocation of a grant of probate or letters of administration;
- the recovery of estate assets.
Challenging the Validity of a Will
Will challenges concern claims that a will is not valid and should therefore be void. Typical claims include:
- Undue influence – that unreasonable influence was exerted over a will-maker resulting in the provisions of the will being changed or different to what they might otherwise have wanted.
- Fraud – regarding the authenticity of a will, for example, that the signature on a will is a forgery or that the will was fabricated by somebody other than the deceased person.
- Lack of testamentary capacity – that the testator lacked the necessary legal capacity when making the will, for example, that they were suffering from dementia or other form of illness affecting capacity.
Family Provision Claims
A family provision claim is a claim made on a deceased estate for provision or further provision from the estate.
Beneficiaries of an estate upon which a family provision claim is made may question the point of making a will in the first place if the deceased’s wishes will not be respected. The rationale behind legislation allowing family provision claims is that people have a moral obligation to provide for certain others who should not be a burden to society or the benevolence of strangers. Perhaps the most common example is that of a husband leaving his entire estate to his mistress and leaving his wife and children destitute. While some family provision claims may be morally justified, others may be considered unworthy and will be fiercely contested.
If you believe that you have been wrongly left out of a will or if you are an executor, administrator, or beneficiary under a will against which a claim for provision has been made, we can help.
Making a Family Provision Claim
A family provision claim can only be made by an eligible person which is a:
- Spouse;
- de facto spouse;
- child;
- former wife or husband;
- dependent grandchild or person who was a member of the same household as the deceased;
- person with whom the deceased was living in a close personal relationship at the time of the deceased’s death (whether there was a close and personal relationship is a matter for evidence).
If you are eligible to make a family provision claim, you must show that the deceased person failed to make adequate provision for your proper maintenance, education, or advancement in life.
We will need to gather evidence to support your claim. This will include details of your relationship with the deceased person, your financial situation and needs, and the assets of the other beneficiaries.
Usually, once your evidence is ready, the executor will be contacted for settlement negotiations. Many family provision claims are settled through negotiation or mediation without having to go to court. While this usually saves a lot of time and money, it is important to ensure that an out-of-court settlement provides a fair and reasonable outcome in the circumstances.
If the claim is not resolved, a court may need to decide whether the claim should succeed and, if so, what adjustment should be made in the claimant’s favour. If proceeding to court, it is usual practice for the parties to be ordered to attend a mediation. It is only if early settlement discussions or mediation fails that the matter will be heard in court.
In determining a claim, a court would consider a range of factors such as:
- the relationship between the deceased person and the claimant;
- the financial position of the claimant;
- the circumstances, financial position and needs of other beneficiaries;
- the age and any physical, mental, or intellectual disability of the claimant or other beneficiary of the estate;
- the size and nature of the estate;
- the extent to which the claimant has already been provided for under the will, if relevant;
- any benefits previously given to the claimant or a beneficiary of the estate.
Can I make a Family Provision Claim if there is no Will?
If a person dies without a will (referred to as dying intestate), their estate is distributed according to a formula prescribed by legislation. This however will not prevent an eligible person from making a claim on the proposed distribution of an intestate estate.
If you need assistance, contact in*********@es***.au or call 0451 530 877 for a no-obligation discussion and for expert legal advice.