You might have heard fantastic stories about kids suddenly falling into an inheritance of a distant relative they didn’t even know. Now, imagine the opposite: You were very close with a family member, only for them to pass away without leaving anything to you in their will. While an individual has every right to leave an inheritance to any beneficiary they choose, there are also laws surrounding who they need to provide for.
There are legal actions you can take if you are entitled to part of the deceased estate.
Why should you contest a will?
If you feel you have been left out or inadequately provided for within a trust or a will, you can file a family provision claim. You may have a wealthy parent who passed, who did not award you the portion of the estate you were expecting. Even if you were awarded some but not an adequate amount, you could still contest the trust because the provision prevents you from living a comfortable life.
Alternatively, you could have been left out of the trust completely, to which you can file for monetary benefits that would otherwise only go to beneficiaries within the testamentary trust.
From here, you will have to work with a trust lawyer to get the benefits you desire.
What is a testamentary trust?
A fund that is written within a will and outlines assets only available to beneficiaries after the will-maker passes away is called a testamentary trust. Its purpose is to hold aside and protect the estate for certain people of the family or close relatives. The fund is managed by a designated trustee until the time is right for the assets to be distributed. One caveat is that if a beneficiary is under the age of 18 when the benefactor dies, the trustee will continue to manage the asset until the person comes of age.
There are two types of trusts generally: revocable and irrevocable. As you may infer, a revocable trust has more flexibility in moving assets and beneficiaries in and out of the trust, whereas an irrevocable trust is the opposite. An irrevocable trust requires long legal lifting to move assets in and out of the trust and usually ends in the fund being totally dissolved to make any changes. There could be terminology within the document that specifies what can and cannot be changed.
If you are trying to contest the contents of an irrevocable trust, you must act before the benefactor passes away. Once your loved one is deceased, the terms of the irrevocable trust are set and then dissolved.
Your trust contest checklist
As long as you are an eligible beneficiary and can prove the deceased had a moral obligation to provide for you after their death, yet did not, you can contest a will that contains a testamentary trust.
You can claim that the trust does not provide adequate provision if, for example, you are in a worse financial position than other beneficiaries named in the will. In these circumstances, you may receive a lump sum from the trust to cover your needs.
Steps in contesting a trust:
- Finding the will; all beneficiaries named in the will can view it before probate.
- Noting if the trust is revocable or irrevocable.
- Filing a caveat with the executor before or after probate so none of the assets is distributed.
- Working with a lawyer to formulate a case.
- Gathering the beneficiaries during mediation to come to an agreement.
- Filing with the court if there’s no agreement.
There are time limits to contesting a trust as well. Filing within the statutes of limitations for each state can help support your efforts and ensure you remain eligible for the claim. For each state and territory, here are the time limits to contesting a trust:
- NSW: 12 months from date of death.
- QLD: 9 months from the date of death after putting the defendant on notice.
- ACT: 6 months after Grant of Probate.
- NT: 12 months after Grant of Probate.
- SA: 6 months after Grant of Probate.
- VIC: 6 Months after Grant of Probate.
- WA: 6 months after Grant of Probate.
- TAS: 3 months after Grant of Probate.
Working with a lawyer throughout this process will ensure you get the best results. A law professional can help you speak up for what you need, file the necessary documents, mediate for you and, if necessary, argue your case.
Who is eligible to contest a trust?
The Succession Act of 2006 was enacted in New South Wales (NSW), and Victoria (Vic), which outlines who can and cannot dispute a will. The Administration and Probate Act 1958 was erected in Victoria to enable challenges to a will by any eligible persons. Across the country, only certain family members are eligible to contest a will directly. Some of these eligible people include:
- Anyone in the current will.
- Anyone in a previous will.
- Blood-related family members.
- Spouses and children.
While the specifics of eligibility vary slightly from state to state and territory to territory, generally, you must have had a supportive and nurturing relationship with the deceased to be eligible. Eligibility means anyone who lived under their roof, took care of them at any time, had a part in improving the estate or was otherwise dependent on this person.
Outcomes of contesting a will
Once the trust contest closes, the courts will carry out the rest of the distribution of the assets. There may be terminology within the will that allows for termination of the trust if it is no longer relevant to the needs of the beneficiaries. In this case, the court will follow local laws in distributing the estate based on the beneficiaries’ agreement or a previous trust document.
Gerard Malouf & Partners Will Dispute Team
The caveats of contesting a testamentary trust can be confusing, difficult to overcome and convoluted. The trust litigation lawyers at GMP Law are part of the leading firm in Australia. We offer a no-obligation consultation so you can ask questions and figure out a plan. If we take on your case, our no-win, no-fee policy can help ensure we’ll do our best and work our hardest to ensure a positive outcome.
If you’re wondering if you can contest a testamentary trust, contact us today!
