#contesting wills

[contesting-wills]

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]

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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Will Dispute Lawyers

Will Disputes In Australia

Arguably, there are few legal matters more sensitive than those surrounding the last will and testament of a family member who has recently passed away. The loss will weigh heavily on the hearts and minds of everyone affected by it, including those who may have had a complicated or even estranged relationship with the decedent.

No one will be at their emotional best. Interpersonal conflicts are always a risk, especially between immediate and extended family members. But will disputes can be unavoidable in certain circumstances and will dispute lawyers help to manage your claim. For example, in cases where there is a legitimate reason to question the document due to questions of the decedent’s actual intent or mental competence — or a reasonable suspicion that untoward influence affected the testator — it is necessary to pose those questions in court.

If you are legally entitled to start a will dispute by formally contesting the written wishes of the deceased relative, it is imperative that you do so in as prompt a fashion as possible. Not only will your challenge to such a document appear more legitimate to a magistrate if it is filed as soon as possible, but every state and territory imposes a statute of limitations after which such family provision claims cannot legally be made. A Will Dispute Lawyer can advise you about time restrictions for your case.

Why would you dispute a will?

The specific context in which a family provision claim disputing a will is filed varies wildly on a case-by-case basis. Additionally, state laws can differ regarding these matters, such as who can contest a will: Parents, children, stepchildren, grandchildren, spouses (including de facto and life partners), ex-spouses and those “wholly or partly dependent” on the deceased are able to dispute wills in most states, but not all; for example, the Australian Capital Territory’s Family Provision Act does not include ex-spouses.

However, there are several broad sets of circumstances in which you are permitted to contest a will under Austrian law. These include:

A lack of clarity: Wills may not always explain in unambiguous terms how the various assets of a testator’s estate are to be distributed between those named as beneficiaries within the document. This can be even more complex when the decedent has willed assets not only to spouses, partners and family members but also organisations (usually charities or nonprofits). In such cases, you can file a claim for the will to be examined by the court and potentially altered.

Unfair distribution: All things being equal, the will of a person who has composed and signed off on such a document within the terms dictated by state or territory law must be followed to the letter by the decedent’s legal executor. However, if you were awarded significantly less than your siblings and can reasonably argue that this choice represented a dereliction of the testator’s obligation to you, this is grounds to make a family provision claim.

Problems with an executor: As discomfiting as it may be to imagine that the executor of an estate would not distribute the assets associated therewith according to the precise instructions of a person’s will, it is by no means unheard of. You can contest a will on these grounds or if you believe the executor erred in another way, such as failing to apply for probate in a timely manner.

Questions of testamentary capacity: An individual’s last will and testament is, in theory, composed when that person is of sound mind, without being affected by anything detrimental to their mental or neurological well-being. If there is reason to believe the will’s testator was suffering from the symptoms of such a condition when they signed the document (e.g., Alzheimer’s disease, dementia, an acute mental disorder like schizophrenia or the effects of significant substance abuse), you can mount a challenge, but be prepared to proffer a great deal of physical evidence supporting your claim (medical records and so on).

Suspicion of undue influence: If one or more beneficiaries of a will coerced or otherwise manipulated the testator into a scheme of asset distribution that benefited them and disenfranchised others, that constitutes undue influence and is grounds for a family provision claim.

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