Will and Inheritance Disputes
Publish Date: 31 August 2006
Author: Gerard Malouf & Partners
The law generally recognises a persons right to make a Will that
is unfettered by the normal constraints as to what is fair. However,
this situation sometimes leads to a grossly unfair. Last Will and
Testament which can leave valued members of the family without any
benefits.
The law, does allow a Will to be challenged if there are good
reasons based upon a number of matters including:-
• Whether or not the Will is grossly unfair;
• Whether there are financial needs of “family members”;
• Whether there a dependants who were partially or fully
financially dependant upon the deceased;
• Whether the deceased had the mental capacity to
understand what he/she was doing;
• Alternatively, if a deceased did not have the mental
capacity to understand what he or she was doing when drafting the
will there may be a basis to bring a claim to challenge a
beneficiaries share;
• Alternatively, there may be an application made that the
Executor was unduly influenced by another person prior to the
signing of the Will and that it in fact did not reflect that persons
true wishes. This is known as an undue influence claim;
• In New South Wales, which is an example of type of
legislation that is available in other states, the Family Provision
Act, 1982 and amendments relating thereto governs the questions of
fairness and probity when dealing with the wishes of the deceased.
It basically involves questions of fairness, the capacity of the
deceased, the financial dependency of those parties that may be
entitled to some of the deceased's estate and other relevant matters
depending on the facts of each particular matter.
The law in most states recognises that defacto or same sex
partners or anyone else who can show that they had some or all of
the criteria mentioned above has an ability to challenge a Will that
is unfair.
Gerard Malouf & Partners, “No Win-No Fee” Scheme (subject to
terms and conditions as discussed with each individual) is available
for Wills and Probate Disputes. Our expert team of litigation
specialists will assist you notwithstanding your poor financial
position that might normally preclude you from bringing costly legal
proceedings.
Time Limits
Each state has different time limits within which a potential
applicant can contest a Will. In New South Wales under the Family
Provisions Act 1982 and amendments there is an 18 month time limit.
Please speak to us about time limits applicable. Notwithstanding the
fact that monies have been distributed within the 18 month period it
may be possible to bring actions against the executor of the estate
and/or other parties that have already received the proceeds of the
estate.
Actions Against Executor's of an estate
There may indeed be a situation where an action is brought
against the Executor of an Estate, that is, the person that is
authorised to administer the financial assets of the deceased and
often it might be argued successfully that the Executor of the
Estate has breached his position of trust and acted inappropriately.
It is very important an Executor act with diligence and competence.
If you are an Executor of an Estate and you are being sued or
litigation is being threatened against you on the basis that a party
has been left out of a Will we are happy to assist you and advise
you as to your rights and obligations. An Executor may personally be
made liable if he distributes the estate in a negligent manner
without taking into account potential parties notwithstanding the
fact that they have not been included in the Will.
Additionally, Executors have a right to defend any application
made under the Family Provisions Act, 1982 and the Executor will be
indemnified for his reasonable legal costs in defending such an
action on the basis that such defence is reasonable in light of all
the facts. This is a very complex area of law. Generally the costs
of any dispute is paid out of the estate but there are many ifs and
buts which our lawyers would be happy to discuss with you.
Legal Costs
We also suggest strongly that litigation be avoided generally in
respect of Will/Inheritance Disputes as the cost involved can be
substantial and further more results in delays administrating the
estate significantly. Please contact one of our experienced lawyers
for a private and confidential meeting which we are prepared to
provide on a free consultation basis and quite possibly subject to
terms and conditions act on a “No Win-No Fee” basis generally.
contesting a will
