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Intestacy and Partial Intestacy Laws

What happens when there is no will?

When a loved one dies without a Will, they are described as having died intestate. If your loved one had a Will but part of the instructions are not able to be carried out, then a partial intestacy arises.

The description of intestacy is not merely a word used to describe a person who dies without a Will. When a person dies intestate there are legal ramifications. In essence, it means that a person’s assets (Estate’ will be distributed in accordance with the rules of intestacy. These rules cover spouses, children, parents, grandparents, aunts, uncles, nieces and nephews.

Unfortunately, the rules do not take into account any other strong relationships formed by the deceased.

How do Intestacy claims work?

This can result in gross unfairness when the assets of the deceased are distributed in accordance with the rules of intestacy. If a loved one has died intestate then it is in your best interests to seek expert legal advice on exactly what you are entitled to receive under the rules and what actions you can take to remedy any unfairness in the distribution of assets.

The team at GMP Contesting a Will Lawyers and intestacy lawyers understand the rules of intestacy and how they apply in real life. We use this knowledge to assist clients when a loved one has died and they realise that they are not provided for under the rules. We also use this knowledge to assist clients when a person who had little or no relationship with the deceased, stands to receive a distribution from the deceased’s Estate.

Intestacy and partial intestacy raise complex legal questions that impact on the distribution of the deceased’s Estate. If a loved one has died without a Will, i.e. a no will intestate situation, or there is a partial intestacy in their Will you need to seek legal advice as soon as possible on what action is available to you to rectify the situation.

#Intestacy and Partial Intestacy #GMP Contesting Wills #Australian Lawyers #Intestacy Lawyers

Public Trustee Application and Claims

What do you do if a public trustee claim is rejected?

The death of a family member is always an emotionally challenging time. If the deceased left an incomplete or illegitimate Will, or no Will at all, it can create even more frustration and confusion. In cases where there is no clear executor, it is the job of the public trustee to ensure the estate is divided fairly. If you believe you are owed money from an estate where no Will exists, a public trustee claim is the most effective way to secure what is rightfully yours.

What is the role of a public trustee?

The public trustee is an office in each Australian state charged with handling any estates where a legally permissible Will is not present, or it is unclear who should be the executor of the Will. The public trustee is typically appointed to handle an estate by a court. The actions and level of involvement by the public trustee will vary depending on the specifics of each situation, ranging from naming another trustee to controlling day-to-day operations of an estate.

The public trustee may also handle the affairs of state residents who are still alive, such as situations where an adult guardian must be named or assets have been forfeited because of criminal charges. In addition to holding money from estates without a Will, the public trustee can also control other types of unclaimed money, such as that held by banks or credit unions, superannuation or life insurance policies.

How do I find out if I am owed money?

Most states in Australia either keep a register of Wills and unclaimed money or depend on a private service to do so. You can use these options to search for unclaimed money and make a claim on funds that you may have a case for. Typically, to make a claim you’ll need official supporting documentation and to fill out a form.

If your public trustee claim is unfairly rejected, a skilled solicitor can help you bolster your case and ensure you receive the compensation you deserve.

For decades, the expert solicitors and barristers of Gerard Malouf & Partners have been helping people across Australia navigate the Will and estate process, from ensuring their Wills are legally sound to contesting those that unfairly leave family members out. If you need assistance filing a public trustee claim or feel that your claim has was wrongly rejected, Gerard Malouf & Partners are there for you.

Why choose Gerard Malouf & Partners?

Gerard Malouf & Partners is not a giant, publicly listed law company but one of the largest private, highly specialized and focused law firms in the area of will disputes Australia-wide.

We are small enough to care intimately for their clients and large enough to have the financial, medical and expert resources clients need to receive maximum compensation.

Our dedicated client care service team will ensure that you are kept up-to-date at all stages and you receive the triple “C” compassion, commitment and competence from all our staff.

#Public Trustee Application #Public Trustee Claim #GMP Lawyers #Australian Lawyers #Contesting a will

Intestacy and Partial Intestacy Laws

OVERVIEW

What happens when there is no will?

Unfortunately, the rules do not take into account any other strong relationships formed by the deceased.

PROCESS

How do Intestacy claims work?

Public Trustee Application and Claims

What do you do if a public trustee claim is rejected?

What is the role of a public trustee?

PROCESS

How do I find out if I am owed money?

If your public trustee claim is unfairly rejected, a skilled solicitor can help you bolster your case and ensure you receive the compensation you deserve.

GERARD MALOUF & PARTNERS

Why choose Gerard Malouf & Partners?

Gerard Malouf & Partners is not a giant, publicly listed law company but one of the largest private, highly specialised and focused law firms in the area of will disputes Australia-wide.

We are small enough to care intimately for their clients and large enough to have the financial, medical and expert resources clients need to receive maximum compensation.

Our dedicated client care service team will ensure that you are kept up-to-date at all stages and you receive the triple “C” compassion, commitment and competence from all our staff.

Challenging a Will

Challenging a will can be an arduous process, with a heavy burden of proof required before a will can be successfully set aside. However, if you have strong reason to believe the deceased was manipulated or coerced, or was not mentally capable at the time the will was written, you may wish to seek such proof so you can challenge the will.

If you choose to challenge a will, having a will dispute attorney on your side can help you as you lodge your claim and gather evidence to take to the Court. Our team of experienced inheritance claims lawyers can provide you with the expert legal advice and support needed to develop your case and successfully challenge a questionable will.

If you’re creating a list of important questions about challenging a will, take a break and review the following. It likely covers most or all of the things you want to know, and can help you determine if it’s time to call our firm for help. Challenging a will can be a complex process, and you need legal advice you can trust.

Why would I challenge a will?

Reasons for challenging a will can come from several quarters. You might have discovered that the will ignored the Succession Act and instead left the entire estate or a majority of it to a single person who is not as close to the deceased as you would expect.

If that person is also the executor of the will, you may have suspicions that your loved one was pressured in some way to change their will and make the lopsided bequeathment. It is not unheard of for people to manipulate and pressure an elderly person into changing their will and leaving them in control.

Warning signs could include being increasingly rejected by the deceased in the period before their death, or not being able to have access to them in their final days. If the executor has been dishonest or can be shown to have exerted undue influence over the deceased, you can apply to have them removed.

You might also consider challenging a will if the bequeathments seem erratic, especially if you know of mental illness or dementia being present before the deceased’s death. Challenging a will based on the testator’s mental capacity is difficult, but can be accomplished, especially if the deceased did not take the step of having a medical professional and attorney present to certify testamentary capacity at the time of the will signing.

Finally, you could challenge a will if you have reason to believe that the will is fraudulent or a forgery. This may entail getting professional help from a lawyer and doing forensic investigation to prove that fraud is being committed or that a forgery has been created. If the will was created without the knowledge or approval of the deceased, then obviously that is a will that should be challenged and the estate distributed as it should have been without interference from a nefarious third party.

Challenging a will can set things right again, allowing those who would have benefitted from a fair will to receive their inheritance. However, if you believe the will is valid but still disagree with its terms, feeling it did not make adequate provision for you as an eligible person, you may have another chance to dispute the will by contesting it.

Contesting or challenging a will

Contesting wills and challenging a will may seem like similar phrases but legally they have very different meanings when it comes to will and inheritance disputes. The main differences are as follows:

Challenging a will means that you believe it was written under undue duress or by someone not of sound mind, or that it was a fraud or forgery. It seeks to have the will declared wholly invalid and thrown out.

Once the invalid will is removed from probate, a previous will can be reinstated, or, if the deceased died otherwise intestate, the Court will assign distribution of the estate according to the Succession Act.

Contesting a will has more to do with the specific inheritances received by various beneficiaries. The will is assumed to reflect the wishes of the deceased, but the fairness of the aset distribution is brought into question. If the deceased had a moral obligation to one or more persons or made promises that weren’t kept in the will, you can contest it.

This typically consists of filing a family provision claim, detailing your financial status, proving you are an eligible person (usually a family member, but sometimes a person close to the family), and establishing your dependency on the deceased person.

A contested will can be settled through private negotiations with other beneficiaries and the executor, handled via third party mediation as demanded by the Court, or taken through Court proceedings to be decided if an agreement can’t be reached via the other two methods.

The challenge process

In order to successfully challenge a will, you’ll definitely need to do some prep work and line everything up to prove your case, whether you are claiming undue influence or diminished testamentary capacity, or claiming fraud or forgery has occurred.

You can challenge a will if you are a named beneficiary and you believe the will to be invalid. You can also challenge the will if you know you were a beneficiary in a previous will. Finally, if you would be an automatic ally qualifying beneficiary if the deceased had died intestate, you have standing to challenge the will.

You’ll need to be able to provide evidence that supports the reason that you are challenging the will.

Testamentary capacity

If the deceased had full Testamentary Capacity, that means they maintained the ability to make a will while understanding the moral obligations they have to different family members or persons they made promises to.

How the deceased’s estate is distributed can impact family members and other dependents after the death of the willmaker. If succession planning was not done well in advance of any decrease in mental capacity, you may be able to prove the deceased was suffering from a mental incapacity such as dementia at the time they wrote their will, and successfully challenge it to have it removed from probate.

Be aware that elder law protects the rights of the aged to handle their own affairs, including making their will. Find out if an attorney and/or a medical professional attended the will signing. If so, it will be difficult for you to challenge the will on grounds of testamentary incapacity.

Undue influence

A person who makes or revises a will while under coercion or duress of another party is said to be motivated by undue influence. This can be the case if someone sees an elderly person and befriends them in order to manipulate them into changing their will. It can also be the work of someone who underhandedly sought to influence the willmaker to cut out original beneficiaries and make a new will leaving their estate to the interloper.

If the will unfairly leaves out those who would be entitled to a significant inheritance based on the Succession Act, and instead bequeaths their estate to a new acquaintance, an old friend, a family member, or a caretaker who has been spending a lot of time with them, it’s possible they were under undue influence. You may want to look for the following warning signs:

A new will that was made suddenly and with no discussion with previous beneficiaries

A new “domestic partner” who diligently worked to seclude the deceased and turn the testator against other people

A caretaker who may have been using their position to threaten or coerce the deceased into writing them into the will

An executor who benefits from the will far beyond what would have been expected, to the detriment of other beneficiaries

The challenge process can be started by filing a probate caveat to stop the will from being granted probate, or by bringing the matter to the Supreme Court. You may be urged to file a testator family maintenance claim. The will challenge process can vary slightly from territory to state, and having the help of a reputable wills and estate disputes solicitor can help you follow the correct steps and procedures and gather the evidence required.

#Challenging a Will #Challenging a Will Process #Questions About Challenging a Will

How long after a death can a will be contested?

Contesting a will in Australia is a process which must typically be started within a specific time frame. If you try to contest a will after that time frame, you have to have an exception, such as not knowing about the death of the deceased person until after the deadline passed.

If you were estranged from the deceased, provision might have been withheld unlawfully in their estate plan and will, giving you grounds to contest. You should lodge a claim as soon as possible to gain your rightful share of the inheritance.

Waiting to contest a will can be problematic, because once the will is granted probate and the executor can disburse the assets included in the estate, it can be impossible to recoup them from the beneficiaries to whom they were assigned.

How long do you have? That’s one of the most important questions when contesting a will. The answer may vary depending on which Australian state or territory the willmaker lived in. Here’s what you need to know about the timelines for contesting a will.

All in the timing

Statutory deadlines for contesting a will vary depending on the location of the deceased estate. The date when the clock starts ticking varies as well, as some jurisdictions base the deadline on then the testator died, while others only begin the countdown once probate has been granted.

If you believe you were unfairly treated in a will or that adequate provision was not made for you or a minor child, there are a few things you need to do to lodge your claim. You’ll have to file a family provision claim, and notify the executor of the will in writing that you are filing. Your attorney will also send an application to the Court to put a stay on the probate, so the executor cannot move ahead with disbursing the estate. This gives you time to pursue your claim.

To make all of this happen before the time runs out, you’ll need to know the accurate date by which you have to file your claim with the Supreme Court to contest the will.

ACT

In the Australian Capital Territory, you only have six months from the date of probate to lodge a claim and contest a will. There may be some wiggle room for a claim to be filed later under the Family Provision Act 1969. The Court will have to judge that there is sufficient cause to grant the extension for you to successfully file a family provision claim after the deadline has passed.

New South Wales

In New South Wales, you have an entire year from the date of the testator’s death to file your family provision claim. When the exact date of death isn’t known, the Court has discretion to assign a reasonable date. Your rights to apply later are protected in some instances by the Succession Act 2006, which allows the Court to determine if you have appropriate justification for your delay and grant an extension for filing your claim outside of the traditional window.

Northern Territory

In the Northern Territory, you have a little longer; the year allowed for filing a claim doesn’t begin until the probate grant. You may qualify for a late qualification with special leave of the Court, allowing a special circumstances claim to be made later under the Family Provision Act 1970.

Queensland

Queensland has a slightly more complex timeline. First, you have to notify the executor in writing that you plan to contest the will, and this must be done within six months of the date of the testator’s death. However, notification can be sent after the six-month period, and if the estate has not yet been distributed, the executor must pause the process and address the claim. In either case, the family provision claim must be filed within nine months of the deceased’s death. You’ll have to make a very compelling case to obtain a hearing for a later application, and the beneficiaries and executor may also be allowed to share objections and fight back against your family provision claim, according to the Succession Act 1981.

South Australia

In South Australia, once probate is granted, you have just six months to file your family provision claim. The Inheritance (Family Provision) Act 1972 supports claimants who wish for an extension to receive one in certain situations. The Court may allow you to join existing proceedings. If the beneficiaries have already been given their bequests, the disbursement is final, and you won’t be able to regain any of your lost inheritance by filing a provision claim.

Tasmania

Tasmania has the strictest time limit for contesting a will. You only have a scant three months from the date of probate to make your claim. An extension might be considered by the Court if the delays caused are judged to not be a hardship, but if funds are disbursed already, it is too late, and your chance at regaining any of your inheritance will be gone forever.

Victoria

Victoria is another region which only allows six months from the date of probate grant to contest a will in Victoria. The approval of the Court is required for late applications according to the Administration and Probate Act 1958. You’ll have to show that delay won’t harm beneficiaries or prejudice the estate, and once again, if disbursement has already occurred, you’ll leave empty handed, having lost your one chance at gaining your rightful inheritance.

Western Australia

Finally, Western Australia also demands that applicants make a Family Provision Claim no more than six months after the date of the grant of probate. However, late applications may be reviewed by the Court without prejudice, according to the Family Provision Act 1972.

Establishing probate in Australia

The probate process is used by the Court to validate the will and approve the disbursement of the deceased estate. The probate grant recognises the executor named in the will (and the Court can remove them if it is shown they are not acting in the best interest of all beneficiaries).

A grant of probate allows the executor to begin distributing assets from the estate, so your lawyer’s first step is to apply to prevent probate from going forward. This provides time for your family provision claim to be fully settled and prevents everything from being shared out before you have a chance to receive your inheritance.

If adequate provision was not made for your support, your attorney may also request that notional estate (assets not included in the estate, such as a superannuation fund that may have been assigned to someone else as a beneficiary) be included as a way for you to receive provision. This is very common if the beneficiary of the superannuation fund already is well provided for in the will from the main estate.

In cases of contested wills, the probate grant can be reinstated once the claim is settled, and the executor can proceed to disburse funds as ordered by the Court or agreed on in an early settlement negotiation or court-ordered mediation.

For challenged wills, the entire will might be declared invalid. This can happen in cases of fraud, forgery, lack of testamentary capacity on the part of the deceased, or someone exerting undue influence over the deceased at the time they made their will. If this happens, a previous will may be granted probate and validated.

If there is no will and the deceased died intestate, the Court follows the Succession Act to disburse the assets of the estate and all eligible persons must file family provision claims to be heard. Having an experienced estates attorney on your side can help you build a solid claim for provision.

Contesting a claim

Contesting a claim may end up being a long, drawn-out process, especially if another beneficiary or eligible person is also fighting for their share of the inheritance.

The most common reason to contest a will is because of inadequate provision, which can mean you didn’t receive your fair share of the estate, or you might not have been assigned a share at all. You’ll need to file your family provision claim quickly. Alternatively, if you need to challenge a will because of undue influence or a lack of mental capacity of the testator, you have to apply to the Court to have the will thrown out. Again, time is of the essence.

The Court will take many factors into account when considering a family provision claim, including the size of the estate, the number of beneficiaries, their individual needs and claims, and your eligibility to claim provision from the deceased’s estate.

All this talk of contesting a will may make you worry about your own will and the possibility of it being contested after you die. While there is no way to guarantee your will won’t be contested, you can usually make sure it isn’t successfully challenged.

The best course of action is to have your estate plan drawn up with the help of an experienced attorney, and having both your lawyer and your medical provider present when you sign your will. They can testify that you were of sound mind and not under undue influence.

You may protect your will against a contest or challenge by ensuring you pay attention to your moral obligations under the Succession Act during estate planning. You can also take the step of distributing your estate before you pass away so you can be sure your wishes are followed.

#contesting a will #protect your will #family provision

How long can contesting a will take?

Processing the loss of a loved one while deciding on the logistics of what comes next, is a difficult and sensitive situation for everyone involved. Family and friends closest to the deceased sometimes feel a sense of chaos as they try to get everything together for the funeral, as well as manage their loved one’s estate and last will and testament. Temperatures often run high if someone was left out of a will or was promised something verbally that never made it to paper. In this situation, they may decide to contest the will and amend the discrepancy.

Making a family provision claim on a deceased’s estate or challenging a will can be a complicated battle to face on your own. We’ve put together this guide to help you navigate the process and lodge a claim to the court when it is necessary to do so.

Reasons to contest a will

There are many reasons that a will may be challenged, and those reasons tend to be relatively similar across states. The two most common reasons someone may lodge a claim is that the will is not legally bound or those associated with the deceased believe that the will was tampered with.

Other reasons a will may be contested include:

Errors in the will.

The will was not drafted or signed according to the law.

A mental health issue was present or uncharacteristic provisions were made.

A witness will inherit under the will.

Unfulfilled promises in the will.

Improper changes were made.

Removal of executors or trustees.

Beneficiaries are missing.

Estate administration disputes.

Beneficiaries believe that the deceased was influenced into writing a new will.

After the will is verified for its legality, also known as the probate stage or contentious probate stage of the will, anyone is allowed to see the will by searching the Supreme Court probate records database of their state. Before this time, the document is a private piece of information only shared with a few eligible persons through the Inheritance Act of 1975. Eligible people include:

Anyone named in the will.

Anyone named in an earlier will.

A parent, guardian or child of the will-writer.

A spouse or domestic partner at the time the will-writer died.

Anyone who would have been a beneficiary had there been no will.

A creditor.

The parent or guardian of someone under the age of 18 who was mentioned in the will.

Anyone on this list is eligible to contest the will should they feel it necessary. If someone from the list of eligibility lodges a claim against the will, it is considered a family provision claim.

However, you must lodge a claim within the time limit per the state’s guidelines. In New South Wales, the Australian Capital Territory and the Northern Territory, you have 12 months from the date of death to lodge a claim in court.

If you file in Victoria or Western Australia, you have 6 months from the date of death to lodge the claim in court. In Tasmania, you only have 3 months to file a claim from the probate court date.

In Queensland, you have 9 months from the date of death, including 6 months in which to notify the executor of the claim and 3 months to actually lodge the claim in court. If you attempt to lodge the claim after this time, you should seek legal advice as you could still be eligible.

A dispute lawyer can help

Working through the different challenges and clauses of contesting wills is no small task to handle. When it comes to a deceased will, where the person who created it is not there to clarify or defend its contents, court proceedings are more complicated and delicate to navigate. That is why working with a law professional can be your biggest help throughout the process.

Gerard Malouf & Partners is a Leading Australian No Win No Fee Law Firm. We specialise in maximising compensation results from your family provisions claim. Make an enquiry today or give us a call to get started and learn more.

#contesting wills #dispute lawyer sydney #will dispute lawyers australia #no win no fee law firm

Family Provision Claims

Excluded from the will of a family member?

The death of a family member is always a tragedy. Discovering that you’ve been excluded from their Will can be an added blow during an already challenging time. The will and estate planning process can be complicated, and there may be reason to believe that the Will does not represent the wishes of the deceased.

If you believe you have been unfairly left out of a Will, or are a dependent who has not been provided for adequately, filing a Family Provision claim is the next step. The legal team at Gerard Malouf & Partners can be there to assist you and your family, taking some of the challenge out of an emotionally trying process and getting you the compensation you deserve. Our lawyers work on a “no win no fee” basis so you can feel secure that you’re making the right decision in advocating for yourself.

What is a Family Provision Claim?

A Family Provision Claim is a certain kind of way to dispute a Will in court. You are eligible to submit a Family Provision Claim if you are related to the deceased and have a demonstrated financial need that the deceased had a moral obligation to meet. As the specifics of these cases can vary widely, the best way to know if you may be eligible is to consult with an established lawyer who specialises in disputing Wills.

Some of the factors a court may take into consideration when deciding on a Family Provision Claim case include:

Your overall financial need: This is possibly the most important factor in these cases. In Australia, the deceased has an obligation to provide adequate provisions to their dependents, if funds exist. Establishing that you are in fact a dependent of the deceased, and would be placed under financial burden if not provided for, goes a long way in a favourable decision.

Your relationship with the deceased: Simply establishing that you are an eligible person to contest a Will, such as a child, spouse or other family member, is not a guarantee of a favourable ruling. A plaintiff must usually demonstrate some kind of relationship with the deceased that would suggest that they would be supported.

Any obligations the deceased may have owed you: If the deceased has some kind of debt to you that was left unpaid during their lifetime, a settlement with their estate may be possible. This is also true if you have provided a large amount of care of labour for the deceased during their lifetime.

Your financial circumstances compared to other beneficiaries: This becomes a factor if both your financial need is significantly greater than your competitors, or that the estate is large enough to provide funds to you without greatly affecting the share of the other beneficiaries named in the Will.

Any physical, intellectual or mental disability you may have: If you are disabled, it may build your case that you were a dependent of the deceased, as your disability may impact your ability to provide fully for yourself.

It is important to note that family members only have a small window of time to submit Family Provision Claims in court. The time limit varies by state and ranges from 12 months in New South Wales, to only six months in Victoria and the Australian Capital Territory. Handling legal motions while still in the grieving process can be difficult. Working with the experts at Gerard Malouf & Partners can help.

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