When you lose a loved one it can be difficult to navigate both the loss and the practicalities of settling their estate. If the deceased had a large number of assets and the will is complex, this can lead to added stress and anxiety as beneficiaries find out how much their inheritance is and wonder if their share should have been larger.
In many cases, a will may have been written years ago, and circumstances changed drastically between that time and the present. It’s possible that people have become estranged, or that fences have been mended and relationships repaired. New children or grandchildren may have been born or passed away, relationships could have been built, and promises made that might alter the parameters of the will.
If you have discovered that you’ve been minimised in regard to an inheritance, or worse, left out of the will altogether, you may feel that things are very unfair. Fortunately, you may have the right to dispute the will and get the inheritance you rightfully deserve.
You probably have a lot of questions about contesting a will successfully.The first step is to speak to a qualified inheritance disputes attorney and get legal advice from an experienced professional.
Reasons to dispute a will
There are many reasons you might want to dispute a will. The first would simply be because you feel the will did not apportion the assets of the estate fairly or in proper accordance with Australia’s Succession Act. If this is the case, you simply need to be able to prove you are an eligible person to file a family provision claim.
Claiming inadequate provision through an inheritance claim requires that you prove that the deceased had a responsibility to you or your child, and that the will did not take that into account. This can result in you receiving more of an inheritance from the estate, in order to meet your proven needs.
You might also want to contest the will even if you aren’t family, if the deceased made promises to you or you contributed significantly to the value of the estate on the understanding that this would pay off for you after the death of the testator. If you ran the deceased’s business, for example, on the understanding that it would pass to you when they died, this could be grounds for a claim.
Contesting a will vs. challenging a will
In addition to contesting wills (arguing that while the will itself is valid, some of its terms should be changed), you can also challenge wills (arguing that the entire will is invalid and should be thrown out). Contesting is the more common route, but you may need to challenge the will if you think the deceased did not have sufficient mental capacity or was under undue influence.
If you think the deceased was not of sound mind when they created their will, you might be able to challenge it on grounds that they did not have testamentary capacity. If you can bring adequate evidence to the front to prove that the deceased lacked mental capacity when they created their most recent will, the Court can refuse to admit the will to probate and admit a previous will instead or, if no other will exists, follow the Succession Act and distribute the estate accordingly.
Another related reason to challenge a will is if you believe undue influence was exerted on the testator to make them write their will in gross favour of a single party or branch of the family, or to change their will to reflect an uneven distribution of assets. If you can prove that a new partner, a caretaker or another person exerted undue influence on the deceased, you may also be able to convince the Court to refuse to admit the will.
If the deceased appointed a family member or friend who you believe to be biased as their executor, you can also file an application with the Court for their removal. The Court will generally not act unless it can be clearly shown that the executor is guilty of gross dishonesty, or that they stand to benefit in an inordinate fashion from the will for no clear reason.
Determining if you’re eligible to dispute a will
To dispute a will by bringing a family provision claim, you must be an eligible person. Who qualifies as an eligible person may vary slightly between states and territories, but in general the following are most likely to be deemed eligible people for the purposes of disputing a will.
- Current spouses or de facto spouses (domestic partners) of the deceased
- An ex-spouse or partner of the deceased (in some areas)
- A “natural” or adopted child of the deceased (including ex-nuptial children)
- Stepchildren (in some areas)
- A grandchild who was dependent on the deceased
- A person who was at any point both a member of the deceased’s household and wholly or partly dependent on them
- A person was living with the deceased person at the time of their death and had a close personal relationship with them
- A person who contributed to the value of the deceased’s estate
- A person who was given promises about an inheritance from the deceased before their death
Even if you are not directly related to the deceased person, you may be able to file an inheritance claim if you meet one or more of the eligibility requirements. You can also represent a minor child for their inheritance.
If you are named in the will, but feel your inheritance was too small, you can file a family provision claim to have your share increased. You may also lodge a claim if you were not in contact with the testator or other family members for years, had been estranged from or disowned by the testator, or if you didn’t even know they had passed away for a long period of time.
To prove dependency, you must show that the deceased has a moral obligation to you or a child you represent, and that you or the child suffers from lack of funds or were financially hurt by the passing of the deceased.
If you can show that you or a child you represent was partially or fully financially dependent on the deceased, a knowledgeable wills dispute attorney can help you build your case. The Court will look at a range of factors including:
- The relationship to the deceased
- The overall level of financial need
- Any obligations owed by the deceased
- Current financial circumstances compared to other beneficiaries
- Existing mental, intellectual or physical disabilities
If you can show that you have unfulfilled needs, and the provision made from the estate was insufficient, you can make a case from that standing, whether based on being dependent on the deceased, or incurring financial harm from previous promises that were not recognised in the will.
Making a successful claim
As soon as you are aware of a person’s passing and that their will may not be favourable to you, you should move swiftly to file a family provisions claim or lodge a challenge. Your solicitor will file a brief to stay in the executor’s hand, so that the assets of the estate can’t be distributed until your claim is reviewed.
In most cases the time limit for filing a family provision claim is 12 months or less, but you might gain an exception if you didn’t know about the deceased’s death until much later. This could happen if you are an ex-nuptial child who has not had much contact or if you were estranged from the family.
Be aware that if assets have been distributed before you bring your case, the other beneficiaries may have already spent or disposed of the assets and your ability to recover any of your inheritance may be hampered by the fact that there is nothing to retrieve.
Getting legal advice from a will disputes law firm and starting proceedings to protect your inheritance should therefore be done as soon as possible. At Gerard Malouf & Partners, we start by filing the application to have the executor’s process frozen. Then we work to ascertain the true value of the estate. From there, we’ll work out what percentage of the estate or flat dollar amount should rightfully go to you.
This is the number we’ll bring to the negotiating table. As soon as you’ve been established as an eligible person and have made a clear claim for adequate provision, we can start negotiations with the other parties to help achieve your goal: inheriting what you deserve from the deceased estate.
The first approach is for an early settlement, which means we work with the counsel of other beneficiaries and the executor to come to a mutually agreeable solution. If they agree to the number presented, the Court can approve disbursement and lift the stay on the executor.
If you can’t get an early settlement, the Court will likely send the case to a mediator. During mediation, all sides must make their cases, and the mediator works to create a solution all parties will accept. If mediation bears fruit, the Court can approve the disbursement to take place.
If you can’t settle or arrive at an agreed on mediation, we’ll take your claim to Court. The parties involved will all have to make their case, and the Court will make a judgement on which beneficiaries deserve what inheritance from the assets of the estate. The Court is primarily concerned that beneficiaries who need an inheritance for support and qualify according to the Succession Act are taken care of.
If you are challenging the will and not merely contesting it, you’ll need to achieve a higher burden of proof. It must be shown that the deceased either did not have the mental capacity to make decisions when they wrote their will, or that they were under undue influence from someone else when they wrote it.
Both coercion and lack of testamentary capacity are reasons to throw out a will and revert to a previous version. If the deceased person died with no will (intestate), then you can make a family provision claim. The Act of Succession will be used by the Court to divide the assets fairly among family and dependents.
There is a lot of paperwork and documentation involved in disputing a will. Even if you only get one line wrong on one page of a family provision application, your claim could be tossed out or you may have to start over. Having an estate attorney working on your behalf can prevent such mistakes.
The same goes for having an experienced attorney with you through early settlement negotiations or mediation. A clear-headed, unbiased third party with your best interests at heart can reduce the need for interaction with other beneficiaries who may be also upset and hurting.
If it becomes apparent that the executor is failing in their duties or is trying to set things up for their own personal gain (which can happen as the executor is often a friend or family member and qualifies as a beneficiary) your will disputes attorney can apply to have them removed.
In Court, the advantages of having an experienced legal team on your side are even more apparent. It’s easy to get flustered or in an altercation when feelings are running high. With someone there to give you legal advice and represent your interests, you can focus on managing your mental and emotional health during such a trying time.
If you are wondering how much you’ll owe in legal costs if your claim is unsuccessful, the good news is that Gerard Malouf & Partners operates strictly on a no-win, no-fee basis. That means if for some reason your inheritance dispute should fail to yield fruit, we charge no legal fees for our law firm’s handling of your case. You’d only be out any actual costs incurred.
Even if you are set to receive an inheritance, it may not be in line with what you deserve or were promised. We have extensive experience in getting our clients a larger inheritance by disputing the will.
Your potential payout for contesting a will or challenging a will could be substantial. If the estate was large, and your claim is well supported, you may end up with a sizable percentage of the estate. Even if there are many beneficiaries, you can still achieve an award of a flat dollar amount that more than makes it worth your while to pursue your rights.
Don’t think that if you have been “disowned” you can’t contest a will or file a family provision claim. Australian law doesn’t look kindly on parents who disown their children, and the Succession Act can protect your interests. You could still file for provision and be included in the disbursement of the estate.
Also, don’t write off your chances if you were a child born out of wedlock and unacknowledged. The Succession Act was expanded to include “ex-nuptial” children so as to provide for them in the event their needs are not being met. As an ex-nuptial child, you have to prove parentage either by admission before the deceased’s death in writing or to a satisfactory witness, or with a test to prove parentage.
Be aware that it is much harder to challenge a will than to contest one. If you plan to challenge, make sure you have some way to prove that your loved one lacked the mental capacity to make those kinds of decisions at the time they created their will. You may need the testimony of medical professionals as well as those closest to the deceased during that specific timeframe.
Are you worried about your own will being disputed? The best way to keep this from happening is to have your own estate attorney and a medical professional present when you create your will. They can attest to your mental capacity. If someone tries to challenge your will based on testamentary capacity, you’ll have protected your rights.
A contested will is a little harder to avoid, especially if you leave a direction that clashes with the Succession Act. Acquainting yourself with the financial status of all people who might potentially file a daily provision claim and working out how much to leave them to make it unpalatable for them to seek more can help you ensure that your final wishes aren’t contested. As a last resort, you can always disburse the majority of your estate before your death, leaving assets to those you feel deserve and need them and effectively stopping any potential legal action in its tracks.
Gerard Malouf & Partners is ready, willing and able to help you contest a will and get the inheritance you rightfully deserve, or to represent your child if they were unfairly left out of a will. Contact us for no-obligation legal advice about your claim.
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