CALL US NOW 1800 646 672

Wills & Estate Layers Australia

Expert Services

Create a Will Changing a Will Creating a Testamentary Trust Superannuation International Estate Planning General and Enduring Power of Attorney Estate Administration Estate Disputes Retirement Village Issues

CASE STUDY:
International Estate Planning

International issues in estate planning are becoming more prevalent in today's global community. It is not just high net worth individuals who have assets or interests outside of Australia... read more

Home » Our Services » Estate Disputes

Estate Disputes

Challenging an Unfair Will

The law requires a person making a Will to be of sound of mind, such that they are mentally capable of understanding the nature and effect of making a Will. The court may overturn a Will if it can be established that, at the time of making his or her Will, the deceased person lacked the mental capacity to do so. Similarly, grounds for 'setting-aside' a Will may be established if it can be shown that the deceased person was under undue pressure to make his or her Will in a particular fashion. This is a complex area of the law, and each case needs to be considered individually.

Estate Litigation: Family Provision Claims

Certain persons are eligible to challenge a Will by making a family provision claim, depending upon their relationship with the deceased person. This is a complex area of the law that varies between each State and Territory.

In the ACT, if you wish to challenge a Will because you were not made a beneficiary or because you consider you were not adequately provided for in the Will, you may do so under the provisions of the Family Provision Act 1969. Persons who may be eligible to challenge a Will include a spouse, domestic partner (including de facto couples and same sex couples), or a child of the deceased. Parents, stepchildren and grandchildren of a deceased person may also be entitled to make an application, provided they meet certain criteria. The New South Wales provisions provide a similar set of applicable rules.

The Family Provision Act 1969 attempts to achieve a balance between a person's right to decide how they want to distribute their estate on their death, and ensuring that persons who are properly dependant on someone who later dies are adequately provided for. The court will consider a number of relevant factors, including the size of the estate, the interests of other beneficiaries under the Will and other people who have competing claims against the estate.

In the ACT, a family provision claim must be made within 12 months of the date that the grant of Probate or grant of Letters of Administration was issued.

If you are considering a family provision claim, you will need to provide us with full details of your relationship with the deceased person, including any details of financial dependency and assistance provided to you by the deceased person. We will also need full details of your financial means, including your assets and your income and full details of your financial needs.

If you are an executor or administrator who is defending a family provision claim being made against the deceased estate, you will need to provide us with the Will, full details of the estate assets and liabilities, full details of all beneficiaries under the will and any other potential claimants, as well as full details of the family provision claim being made.

One of Snedden Hall & Gallop's experienced estate litigation solicitors will be able to advise you and assist you once specific details are known.

Reviewing a Suspicious Will

The law requires a person making a Will to do so of their own free will. A Will may be set aside by the Court if it can be shown that the deceased person was under undue pressure to make his or her Will in a particular fashion. Similarly, if there is evidence that a Will was forged or otherwise fraudulently made, the Court may set aside the Will. This is a complex area of the law and each case needs to be considered individually.

Protecting an Inheritance

A person's assets will normally be distributed in accordance with his/her Will. If a person dies without leaving a Will, the law prescribes who will inherit from the deceased person. If no eligible persons fall within the criteria, then it is possible a person's estate may be left to the government.

CONTACT US

Why create a Will?

Every adult should have a Will. We can assist you by drafting and finalising a legally effective Will... read more

What protection do I have?

When making decisions on your behalf, your attorney must act as they believe you would have acted in the circumstances. In addition... read more