Contesting a Will
If you’ve been left out of a Will, or have been unfairly treated in terms of the amount of your inheritance you may be able to make a claim against the estate.
Who can dispute a Will?
It varies from state to state, but some of the people who may be entitled to claim include people who had a relationship with the deceased such as:
- Wife or husband
- De facto or same sex partner
- Former spouse or de facto partner
- Child, stepchild or grandchild
- Parent of a child of the deceased
- Parent, brother or sister
- Someone who was financially dependent on the deceased
- Carer of the deceased
Is there a time limit?
Yes, there is. You have only 12 months from the date of their death to make a claim. In certain circumstances, we might be able to obtain an extension of the time limit so please contact us to discuss your situation.
What if I don’t believe the Will was valid?
You can challenge a Will if you believe that the will is a forgery or if the person lacked the mental capacity to make a Will. You can also challenge a Will if you believe that undue influence was brought to bear upon the deceased or if there was fraud involved.
How do I make a claim?
First, contact a lawyer, who can assess your claim and discuss the particular circumstances of your claim. If it’s worth continuing we will contact the executors and notify them of your claim. We will then gather evidence, prepare documents and make an offer to the executors. Many claims are settled through negotiation at this stage.
If the matter isn’t resolved then we can lodge documents with the court to initiate proceedings. We can still negotiate and in some cases mediation will be required by the court.
Failing all else, we will proceed to a court hearing wherein the evidence will be presented and the judge will make a decision.
We can help
At every stage of contesting or challenging a Will it’s important to have sound, experienced legal advice. We have the skills to negotiate on your behalf to avoid costly court fees, but if it comes down to court we also have the skills to fight on your behalf.
Have you been chosen by a family member or friend to be the Executor of their Will? This means that you have been given responsibility to manage their estate according to the terms they’ve outlined in their Will and to protect their assets under the various laws and rules that govern estate administration in Australia.
An executor’s duties may include responsibilities such as:
- Organising the funeral, notices for the paper, flowers
- Locating the Will
- Obtaining a copy of the Death Certificate
- Making sure any property and assets are safe and secure
- Determining the value of assets
- Applying for Probate
- Paying insurance policies, debts and taxes
- Collecting moniesbelonging to the deceased from financial institutions and insurance companies
- Collecting debts owed to the deceased
- Lodging tax returns for the deceased and for the estate
- Selling properties and assets
- Reporting to beneficiaries
- Distributing the proceeds of the estate to beneficiaries
- Setting up trusts
Being an Executor can be overwhelming, particularly when you are grieving, but rest assured we can guide you through.
Do Executors get paid?
It depends. If you are a beneficiary of the will it is presumed that your benefit will cover your costs. If you’re not a beneficiary then you can apply to the Supreme Court for commission.
Do I need a Lawyer?
Estates vary in complexity and Executor’s duties can be complicated, so it may be a good idea to get advice from a lawyer. The cost of legal advice is usually covered by the estate, not the Executors.
What is Probate?
Probate is recognition of the Will’s validity and permission from the Supreme Court for the Executors named in the Will of the deceased to carry out their duties in relation to the Estate. You will likely need a grant of Probate to deal with the assets of an estate, such as selling property and obtaining bank funds.
What if there is no Will?
This situation is referred to as intestacy and the law determines how assets will be shared out after debts have been paid. If you are the next of kin you can apply for Letters of Administration, which will give you authority to finalise the estate.
What if I’m not up to the job?
Just because you have been named an Executor doesn’t mean you have to accept the responsibility. If there is another Executor named, they can take on the whole of the job, or if you are the sole executor you can apply to the court to appoint someone else. You cannot change your mind later though – giving up the responsibility is final.
MAKING A WILL
There is no one answer about how to do your Will. It all depends on your assets, your circumstances and who your beneficiaries will be.
You need to make a will that makes your wishes clear, that avoids confusion and conflict amongst your loved ones, and that is legally valid and binding. Doing this will protect your family and friends from costly and stressful legal disputes.
Things you need to consider
Who will be your Executors?
Your Executors have the legal and administrative task of sorting out your assets and debts after you die and making sure that your wishes as outlined in the Will are upheld.
Who will be your beneficiaries and what effect will their inheritance have on their circumstances?
You can designate anyone as a beneficiary and distribute your assets in any way you like, however if you don’t provide for your family and dependents, your will can be contested and your hard won assets used on litigation fees.
You also should consider the effects that an inheritance may have on your beneficiaries. In some cases a testamentary trust can sidestep potential taxation problems, so it’s important that you get specific advice about your situation.
How do you know a Will is valid?
To be valid, the person making the Will must be mentally competent, the Will must be correctly signed and witnessed, and show no evidence of tampering. The witnesses to the Will cannot be beneficiaries, or related to beneficiaries and must be over 18.
If there is any doubt, or potential for dispute as to your mental competence, you should get a doctor’s confirmation of your capacity to make the will and include it with your Will.
How often should I review my Will?
You should certainly review your Will after any major events, such as marriage, divorce, property purchase or sale, death of a beneficiary or if your assets change significantly. We also recommend that you take a look at your Will every couple of years just to make sure that it is still the best instrument for you and for your family.
We can help
We know the potential pitfalls, and will ask you all the right questions to make sure that you have considered every possibility. We can advise you as to whether you would be best with a Will or a Testamentary Trust. We can design your Will in such a way to help protect your family from expensive estate litigation after your death and we can safely store your Will in our secure vault.
Planning for your family’s future after you’re gone is a really important legal task. If you take the time now to make an effective legally binding Will and Testament you can save your family not only stress but money in what will undoubtedly be a difficult time for them.
Harbourside Legal’s will and estate planning lawyers can help:
- Advise you in regard to estate and Probate laws
- Write a will that maximises the inheritance for your family
- Set up family and testamentary trusts
- Advise you in regard to choosing executors and guardians
- Minimise the chance that your will is contested and subject to litigation
- Advise in regard to estate tax (including capital gains) and financial concerns
- Safely store your will and other important legal documents
At the same time as considering your Will we strongly recommend that you also put in place plans for any future incapacity through Power of Attorney and Guardianship documents. This will ensure that if you somehow become unable to make decisions about your finances, your medical treatment or living arrangements then the person or persons who you trust to make these decisions can do so unhindered.