ESTATE DISPUTES

There are 3 main ways a deceased estate can be challenged:

• Capacity
• Coercion
• Provision

Capacity

If the deceased person did not have mental capacity at the time they made their will, the court may declare the will to be invalid. Medical and other evidence will be needed to establish the lack of capacity.

If the will is declared invalid, then the previous will becomes the operative will. If there was no previous will (or if a previous will was also invalid) then the person is deemed to have no will, and in that event the estate will be distributed under the laws of intestacy.

We can apply to the court on your behalf to challenge the validity of a will, or we can act on your behalf to defend such an application to the court.

Coercion

If the deceased person was unduly influenced, or placed under duress, to make their will in a particular way (e.g. to make a gift to a particular person), the court may declare the will to be invalid.

If the will is declared invalid, then the previous will becomes the operative will. If there was no previous will (or if a previous will was also invalid) then the person is deemed to have no will, and in that event the estate will be distributed under the laws of intestacy.

We can apply to the court on your behalf to challenge the validity of a will, or we can act on your behalf to defend such an application to the court.

Provision

If the deceased person had a spouse (including de facto), child/ren (including adult child/ren and step-child/ren) or other dependant/s, the law says that the deceased person had a duty to provide for them in his/her will in the manner of a “prudent and caring” spouse/parent/provider. If the distribution under the will does not adequately provide for their “maintenance and support,” they are entitled to take court action to seek further provision from the estate. The court can then override the will and make an order that they receive further provision from the estate.

If the deceased did not leave a valid will, the same principles apply if the laws of intestacy do not result in adequate provision being made for the maintenance and support of the spouse, child/ren or dependant/s.

What is “adequate provision” depends on the circumstances of each case. There is no mathematical formula or minimum amount that applies to all cases. The amount of provision that the court may award the claimant will depend on many factors, such as:

• The size of the estate.
• The number and type of claims against the estate.
• The financial position of each of the claimants and beneficiaries.
• Whether each of the claimants and beneficiaries had a good relationship with the deceased; and if not, the reasons for the strained relationship.

The following time limitations apply:

• Within 6 months after the date of death, the claimant must notify the executor that he/she intends to claim further provision from the estate.
• Within 9 months after the date of death, the claimant must commence court action to claim further provision.

These time limits can be extended by the court in exceptional circumstances. However, it is too late to claim further provision if the estate has already been fully distributed.

If you are the executor/administrator of the estate, we can represent you to respond to a claim for further provision. All the legal fees will be paid by the estate.

If you are a spouse/child/dependant of the deceased and you have not received adequate provision from the estate, we can assess whether your claim can proceed on a “no win, no fee” or deferred-fee basis. All the legal fees will usually be paid by the estate.