Areas of Practice

Contesting Estates

 

Have you been unfairly provided for in a Will?

While the law recognises that a person (known as the testator) should be able to decide who inherits their property upon their death, the law also recognises that, in some circumstances, a family member or dependant of the testator has missed out unfairly. This set of laws is known as the Family Provision legislation.

These laws make it possible to challenge the testator’s wishes in their Will, if you have missed out or haven’t been adequately provided for.

 

Who can make a claim?

The legislation provides that a wide range of people may be eligible to make a claim. They include family members, spouses including de facto partners, dependants or those in a close personal relationship with the deceased. The categories of those eligible is not closed and the Court has the discretion to allow others to make a claim in certain circumstances.  Contact us to discuss your specific situation and to see if you will be eligible.

 

Will I need to go to Court?

Not necessarily. Many claims of this nature are settled before the matter gets to Court due to the expense and delay involved in going to court. However, if agreement can’t be reached then you may need to go to Court to have your claim heard by a judge. Before the matter is heard by a judge, they will likely order the parties attend a mediation conference.

 

How will the judge decide?

The judge has two main tasks. The first is to decide whether you have been left without adequate provision for your “proper maintenance, education or advancement in life”. The Court will look to your specific situation and your needs. Some of the things that the Court will look at will be:

  • Your financial position and needs (both present and future);
  • Your earning capacity;
  • Whether you made any financial or other contributions to the deceased’s assets or welfare (for example, caring for the deceased while they are ill or helping to clean or renovate their home);
  • Your age and health;
  • Whether you were being maintained by the deceased;
  • Your character and conduct.

If the Court decides that you haven’t been left with adequate provision, then they will move on to the second task which is to determine what provision is to be made to you. If the matter proceeds to Court and you are successful, the estate will often cover some or all of your legal costs.

 

Are there any time limits?

Yes, a claim needs to be made within 12 months of the death of the testator. So, it is important that you get legal advice as soon as possible.

If you are out of time, we will need to obtain the Court’s permission to make a late claim. There is no guarantee that a Court will give this permission and the Court will only usually grant the extension of time if there are very good reasons for the delay.

 

What if there wasn’t a Will?

If someone dies without a Will, their property will be distributed according to a strict set of rules in legislation known as the “intestacy rules”. These rules do not take into account a testator’s specific circumstances, so an estate may be distributed unfairly if the intestacy rules are applied. If you are affected by a situation like this, please contact us for specific advice.

 

Capacity to make a Will

Family sometimes have concerns a person has made a Will when they didn’t have capacity. That is, he or she didn’t know what they were doing or he or she was influenced to make a Will in a way that he or she may not have made it but for that influence. Such a Will can be challenged. If you have such a concern please contact us for specific advice.

 

We can help

This is a complex area of law and much will depend on your specific circumstances. Curtis Delany Gray lawyers are experienced in these claims and will be able to give you frank and expert advice on your specific claim.

 

Given the time limits, contact us as soon as possible to ensure that your entitlement is protected.