Case Overview
- Our client’s biological mother had passed away without leaving a last Will and Testament.
- He was worried due to the rules of intestacy that his mother’s husband would receive the whole of the estate which had an estimated value of $360k.
- A Mediation took place and our client received $120k after a three-way split of the Estate was agreed between our client and his two siblings.
Our client’s biological mother had passed away intestate; without leaving a last Will and Testament. The client approached Gerard Malouf and Partners because he was concerned that because his mother did not leave a will, his mother’s husband, whom she had seperated from 20 years ago would receive the whole of the estate. The Estate consisted of a property in Queensland which had an estimated value of $360,000. The client was worried that he would receive nothing from his mother’s estate.
The client’s sister and half-brother also brought claims for provision out of the Estate. The client was financially in need of assistance. He had six children, all under the age of 16 years, for whom he had to provide. He also had a mortgage which he was struggling to make the monthly repayments.
Our Approach
The client contacted Gerard Malouf & Partners for advice on contesting a Queensland Estate. Proceedings were commenced in the District Court of Queensland and a Mediation took place shortly after with all the parties. After a full day of Mediation, the parties agreed to a three-way split of the Estate between our client and his two siblings. The client was happy with this outcome which made a significant contribution towards paying off the mortgage and moving his daughter back to Australia.
Contact Gerard Malouf and Partners for a free consultation to find out information about contesting a Will and your likelihood of success bringing a family provision application.
The Result
After a three-way distribution of the Estate was agreed upon between our client and his two siblings, we were able to obtain $120,000 for our client.
Frequently Asked Qeustions
More Information
The first step in disputing a will should be a consultation with solicitors from a law firm that includes family provision claims among its areas of expertise. This conversation will involve a frank analysis of your dispute and its chance of success.
If seasoned lawyers consider your matter valid, then you can declare your intent to claim. This should take place not long after the death or grant of probate (New South Wales permits filings up to 12 months post-death, but the limit is 6 months in). You must clearly argue that you have a pertinent connection to the decedent entitling you to compensation you didn’t initially receive, and explain the “moral obligation” to you this individual should have met.
Successful arguments of these facts will earn you a day in court. Depending on the situation, you may be more likely to resolve this in mediation than before a magistrate; it all depends on how strongly the defendants oppose your claim. You can receive financial compensation in either context if your case is resolved in your favour.
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Do you need a lawyer to dispute a will?
You are entitled to represent yourself (and yourself alone) in all Australian legal matters, criminal or civil. But you cannot represent anyone else; e.g., without a lawyer, you wouldn’t be able to mount a challenge alongside others if all of you were disenfranchised by one particular beneficiary.
Moreover, unless you have significant experience in family law, doing so is a huge mistake. Contesting a will is an extremely complex undertaking, involving intense emotions and high tension, and while an experienced lawyer can manage these matters effectively and objectively, you almost certainly cannot.
Will Dispute Lawyers will also be invaluable in cases challenging the actions of an executor, which can go as high as the Supreme Court.
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How the process of making a claim on an estate works?
In NSW, if you are an eligible person and you wish to contest a will, you must do so within 12 months from the date of the testator’s death. In some cases, the court may make an exception if you were unaware of the death of the testator for longer than 12 months.
As an eligible person, you will likely be making a family provision claim. The court will consider many factors when judging whether or not you are eligible to receive an inheritance due to a contested will.
