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Wills, Probate and Estate Questions and Answers

Author: Nominate a Lawyer

Q. My father died recently leaving a half-share in his estate to both my brother and myself although he more than adequately provided for my brother during the course of his lifetime by giving him the family business and as a result of my father’s generosity he is far more wealthy than I as my circumstances are poor due to ill health. What can I do in the circumstances?

A. In short you can contest the estate on the basis that your brother was more than adequately provided for during the life of your father and that inadequate provision was made for your education, maintenance or advancement.

Q. Recently my mother died and left a will. My eldest sister was made executor and she indicated to the rest of us that we would all share in the estate equally. As things were taking some time to finalise I asked my sister what the hold up was and she said it was because my mother had left nothing to my brothers and sisters the only beneficiary being herself. Is there anything I can do in the circumstances?

A. Yes. Your sister has breached her duty as an executrix but apart from this provided all of you are in need and have not been adequately provided for during the life of your mother then you could all mount a claim for provision from the estate.

Q. Some years ago my husband inherited a house from his father who left nothing to his brother who was a waster. Can his brother lay claim to any part of the estate even though he was well provided for by his father during his lifetime?

A. Yes. There is nothing to stop him from making a claim but the question becomes to what extent is he likely to be successful? Unfortunately he is likely to be given some consideration by the courts even if limited involving everyone in unnecessary cost and expense depleting the value of the estate. Whenever these situations arise it is always best to seek the services of a qualified lawyer who can have regard for the individual circumstances of each particular base to provide the requisite advice on how best to deal with these situations.

Q. I am just about ready to retire and I am involved in a relationship with someone which has been going on for some years although we do not live together. I wish to protect my assets which are substantial while she has hardly any. What should I do?

A. You need to enter into a financial agreement with her so that she fully understands what you are doing in regard to your assets and make sure she is given a copy and seeks independent legal advice so she fully understands her position before you proceed further.

Q. I am in my 20’s and my father died whilst my mother was pregnant with me. This was his second marriage and at the time he died he left a will leaving all his estate to his children of a former marriage. The estate was distributed following my birth and I received nothing. Am I able to make a claim against the estate or am I statute-barred?

A. The general rule is that all claims against a deceased person’s estate should normally be made within 18 months of the date of death. There are a number of exceptions and for a person in your circumstances to have any hope of obtaining redress you should have made a claim against the estate by the time you reached 18 years of age. In essence, now that you are in your 20’s it is hard to conceive of a situation where the court could assist you.

Q. Why does everyone make such a big fuss about having a will as I know a number of people who do not have one?

A. Simply, if you have any assets at all and wish to make sure that they are distributed according to your intentions then why would you wish to rely upon an artificial, statutory order of distribution which may lead to your assets being distributed to person(s) whom you detest.

Q. Will it take me very long to obtain a certificate of independent legal advice

A. The answer is that it depends upon what is involved to review all the documents before the certificate can be issued. There are various insurance and legal requirements that need to be met to ensure that the client is properly advised, and normally the charges are based on the amount of time taken at the applicable hourly rate charged by the legal practice. A solicitor would be guilty of professional misconduct if they issue a certificate without properly reviewing and explaining the documents.

Q. My brother and sister had themselves appointed as joint executors of my late mother’s estate. All of us are supposed to receive a third share each but in my case they convinced my late mother that mine should be held in trust even though I am over 60 years of age. What can I do?

A. The matter can either be negotiated with them or the court approached to overcome the testamentary trust as you are a responsible person.

Q. Can the solicitor acting for the estate also act for me at the same time where I am in conflict with the estate?

A. No. The solicitor has a conflict of interest and should never have accepted your instructions to act on your behalf where there is a conflict of interest. 

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