Case Overview
- Our clients found out that the entirety of their father’s estate had been left to just one of his children, their sister.
- Acting for competing parties in the same estate also has other benefits. One benefit is that we can share resources such as searches of the estate between each party, which reduces the costs involved in making a claim.
- With the value of the estate restored to its true value, we were able to negotiate a settlement with our clients’ sister.
Our clients came to Gerard Malouf and Partners after their father passed away in late 2019.
They had received a copy of the will and found that the entirety of their father’s estate had been left to just one of his children, their sister. Our clients were not provided for under the will and contacted our experienced Contesting Wills team to see if a claim could be made on the estate.
Our clients’ parents separated when they were approaching their teenage years. While they had a good relationship for some time after, this changed when their father met a new partner. Contact reduced and our clients’ attempts to rekindle the relationships were rebuffed by the deceased.
Our clients instructed us that they wanted Gerard Malouf and Partners to act on behalf of both of them.
“A notional estate is comprised that did not form part of the estate at the time the deceased passed away. This could be because they were sold, gifted to another party or transferred to a trust. In our case, much of the property was sold and/or transferred within the last three years of the father’s life.”
David Cossalter
Our Approach
Having competing interests can be difficult but manageable if the solicitor carefully considers the best interest of each party throughout the process. Our solicitors explained that ,oving forward, our discussions and advice would be confidential unless we obtained the consent of each sibling and we would be aiming to secure the maximum settlement within their independent circumstances.
Acting for competing parties in the same estate also has other benefits. One benefit is that we can share resources such as searches of the estate between each party, which reduces the costs involved in making a claim.
Such resources allowed us to determine the extent of the estate including the notional estate.
Often clients are concerned as a large portion of the estate could have been sold off or gifted prior to the deceased passing away. They believe they may have missed their chance. However, if this was done in the last three years, you may be able to draw the value of these back into the estate as part of the notional estate.
The Result
With the value of the estate restored to its true value, we were able to negotiate a settlement with our clients’ sister. This resulted in our clients receiving approximately $325,000 each, vastly larger than being left with nothing, as they were initially.
Frequently Asked Qeustions
More Information
New South Wales is one of the few states in Australia which provide claimants in Family Provisions matters with an opportunity of drawing properties that have been either previously distributed or distributed after the passing of the deceased into the estate to be taken into consideration in the bulk asset thus increasing the value of the estate and in some cases allowing a claimant the opportunity to claim on assets which would have not formed part of the estate without the existence of this clause.
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How long after a death can a will be contested?
Contesting a will in Australia is a process which must typically be started within a specific time frame. If you try to contest a will after that time frame, you have to have an exception, such as not knowing about the death of the deceased person until after the deadline passed.
If you were estranged from the deceased, provision might have been withheld unlawfully in their estate plan and will, giving you grounds to contest. You should lodge a claim as soon as possible to gain your rightful share of the inheritance.
Waiting to contest a will can be problematic, because once the will is granted probate and the executor can disburse the assets included in the estate, it can be impossible to recoup them from the beneficiaries to whom they were assigned.
How long do you have? That’s one of the most important questions when contesting a will. The answer may vary depending on which Australian state or territory the willmaker lived in.
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How do you challenge a will?
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.
