When a family member passes away, their estate is divided according to their will, or (if they died intestate), according to Australian inheritance law. If there are no heirs and the deceased died intestate, the estate goes to the Crown. However, in most cases, each of the family members of the deceased receive a share according to the testator’s wishes.
The executor of the will is responsible for divisioning the estate according to the deceased’s wishes. Sometimes a family member may feel that they or their child did not receive the share of the inheritance that they deserved. In such cases, the family member can contest the will and seek a larger portion of the estate. Here are some frequently asked questions about contesting a will as a family member.
What family qualifies to contest?
To contest a will in Australia, you must be an eligible person. In most cases, this is a family member that falls into one of the following categories:
- A spouse who was married to the deceased at the time of the testator’s death
- A domestic partner who was living with the deceased at the time of the testator’s death
- Former spouses of the deceased (on some states and territories)
- Children, stepchildren and grandchildren of the deceased (some limitations may apply)
It is also possible for persons who were not strictly members of the family but who shared a close personal relationship with the deceased to contest a will. These persons are held to a higher standard of proof regarding their relationship to the testator and claim on the estate.
Spouses and dependants have a legal right to file a family provision claim on the basis of being unfairly treated in the will and not being provided for sufficiently. You have 6-12 months to file a family provision claim, but it is advisable to file as soon as possible, before the executor takes action to disburse the estate.
The executor has a fiduciary duty to carry out the will and act in the best interests of the named beneficiaries. Their duties may include any or all of the following:
- Finding and holding a reading of the will
- Arranging the death certificate, funeral and disposal of the body
- Paying the deceased’s outstanding debts, taxes and duties out of the estate
- Assessing the value of the remaining estate
- Arranging for probate by submitting the will to the Court, if required
- Distributing the assets as dictated by the terms of the will
- Defending against family provision claims and contested wills
If a family member has been appointed executor, but feels they did not receive adequate provision and wants to lodge an inheritance dispute, they may do so, but only after stepping down as executor so an unbiased third party can take over.
Who is defined as a dependent?
For the purposes of filing a family provision claim, a dependent is:
- A spouse or de facto spouse of the deceased
- A child of the deceased
- A stepchild or grandchild (may need to prove dependency on the deceased)
A note about illegitimate, or ex-nuptial children: in the past, children whose parentage had not been defined depended on wording in the will to be included in an inheritance. Later legislation has made it so ex-nuptial children have all the rights of legally recognized children under the Succession Act, as long as the parentage can be proven.
Rules regarding the proving of parentage vary by state and territory. Essentially, parentage may be proven by admittance of the deceased at any time before their death that the child was theirs. This could be in the form of a verbal admission, testified to in Court, or as a written allusion in a letter or other document.
An ex-nuptial child who can prove parentage to the satisfaction of the Court can file a family provision claim against the deceased estate to obtain adequate provision for their needs in accordance with Australian laws regarding rights of inheritance.
Both minor and adult children can contest a will, but in the case of a minor child, a special “Friend” must be willing to stand for the child in court. Hiring a contesting wills attorney can help immensely in such cases. Adult children can also benefit from having an estate disputes law firm to help navigate the process.
Gerard Malouf & Partners have successfully aided multiple adult children in receiving a hefty settlement or additional settlement from their parent’s estate despite an unfavorable will. In many cases, the adult child had been disowned or was estranged from their parent at the time of the parent’s death. Our legal advice could mean a big difference in the amount of your inheritance.
Evidence needed to prove dependency
Proving dependency is more than just being related to the deceased. To get the maximum settlement to which you are entitled, you’ll need to prove your need for your inheritance, and prove it more strongly than other beneficiaries who may also be trying to get a bigger portion.
Start by lodging your family provision claim as soon as possible. If you are an eligible person and you think you are entitled to make a claim on a deceased person’s estate, then in most cases and regions you must submit your application to the court within 6-12 months from the date of the deceased’s death.
If an eligible person was unaware of the death of the testator, this deadline may be extended, but usually in such cases, unless the will is still in probate, the assets will have been distributed and recovery may be impossible.
You will need to be able to present evidence pertaining to all of the following to satisfy the Court:
- The relationship you had with the deceased person
- How old you are
- Whether the deceased person owed you any obligations or responsibilities
- Where the deceased’s estate is (if property) and its value
- Your financial circumstances, both present and future
- Proof of how, when and how much support, assistance or maintenance you ever received from the testator
- If you can be claimed to be adequately financially supported by someone else already
- Your physical, intellectual and mental state
- Contributions you may have made to increase the value of the estate, like caring for a house or running a business
- If provision has already been made for you during the testator’s lifetime or afterwards as a beneficiary
- If anyone else has the responsibility to support you
- Proof of your personal character
- The mental capacity of the deceased, if you are contesting based on their ability to make a will
Once you’ve provided evidence of your dependency, your solicitor will try for early settlement if possible to amicably and swiftly reach an agreement with other beneficiaries. Be aware that the other side doesn’t have to completely disclose their financial position in an early settlement, and they may not be willing to admit the true value of the deceased’s estate. Remember, the executor works for them, not for you, and will be defending against your claim.
Once you have filed a family provision application and have made it clear that the deceased should have provided for you, but failed to do so, negotiations can begin. If this step can be concluded to the satisfaction of all parties, the only involvement of the Court will be to approve the settlement, and then the executor can disburse the assets.
If an early settlement isn’t possible, you may need to proceed to mediation, in which case the Court will refer you to a mediator with experience helping opposing parties reach a satisfactory compromise. In this case, the mediator can demand the executor produce an accurate list of the deceased’s assets and their accurate value. This can help you know how much you should be trying to get.
If, however, the mediation fails, you will have to take your inheritance dispute to court. In this case, your attorney will lay out all of the evidence that you are an independent and that you were not adequately provided for, and win you the largest amount possible.
Why choose Gerard Malouf & Partners?
You may feel intimidated about contesting a will. After all, if you are up against other family members, things could get heated. However, you have rights just like anyone else related to the deceased, and you should pursue those rights. Whether you are contesting the will because of an estrangement, or because you believe the deceased might have been under undue influence or their testamentary capacity compromised, justice should be served.
Having the right legal advice can make all of the difference. When you have a will disputes law firm on your side, you don’t have to be involved in confrontations while you are grieving. We take care of everything for you, helping you collect evidence and build your case, and handling contact with the executor while protecting you from unwelcome approaches by angry beneficiaries who may see you as an interloper.
We can be with you every step of the way, from lodging your family provision claim to gathering all evidence needed to prove you are a dependent. From there, we stay by your side as we attempt to negotiate an early settlement or complete the mediation process. If necessary, we represent you in Court if your inheritance dispute requires it.
Payouts from contesting a will are directly connected to the value of the testator’s estate and how many other beneficiaries are involved. Hiring a will contesting attorney can help you maximize your advantages and get the biggest inheritance possible. Best of all, when you hire Gerard Malouf & Partners, you don’t have to stress over legal costs. Our legal fees won’t be in effect until we win your case, since we work on a no-win, no-fee basis.
GMPs is currently one of Australia’s largest private law firms serving clients in need of help in the area of personal injury and will disputes. We’re both big enough to have significant resources to help our clients, and exclusive enough that our clients get personalised one-on-one attention while we get you the maximum inheritance you are entitled to.
If you feel that you or your child have been unfairly excluded from a will, you have rights and Gerard Malouf & Partners can help make things right and get you the inheritance the testator should have provided for you in their will.. Contact us for no-obligation legal advice about your claim.
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