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Will Disputes

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When someone you love passes on, it can be a challenging time. However, contesting or disputing a Will does not have to be.

Whether you have been left out of a Will and believe you are entitled to provision, or are an Executor or beneficiary of a Will that is being challenged, our experienced Estate Litigation team at marshalls+dent+wilmoth can assist you. Most importantly if you are successful in your claim, your costs are paid from the Estate.

Services

Our team of lawyers have many years of experience in Estate Litigation and Wills and Estates law. We are well equipped to handle a wide range of disputes and other estate related matters. We also practise Estate Litigation in all States including Victoria, Queensland, South Australia, Western Australia, New South Wales and Tasmania.

Our comprehensive services include but are not limited to:

  • Disputing a Will (Testator’s Family Maintenance Claims)
  • Challenging the validity of a Will
  • Acting for Executors to defend a Will Dispute
  • Acting for Beneficiaries to protect their entitlement under a Will

Learn more about our will dispute legal services in Australia.

Will Disputes FAQs

Who is an eligible person to contest a Will for further provision in Victoria?

Under Section 90 of the Administration and Probate Act 1958, the following are classified as eligible persons for a family provision claim:

  • spouse;
  • domestic partner;
  • former spouse;
  • former domestic partner;
  • child;
  • stepchild;
  • assumed child;
  • grandchild;
  • spouse of domestic partner of a child of the deceased who died within a year of the deceased’s death;
  • registered caring partner; and
  • member of the household

There may be some dependency requirements which need to be established for certain classes of eligible persons. Contact our team today to discuss whether you are considered an eligible person to contest a Will.

How long do I have to contest a Will in Victoria?

An eligible applicant must make a claim within 6 months from the date of the grant of Probate or Letters of Administration.

Obtaining a copy of the Will in Victoria

Under Section 50 of the Wills Act 1997, the following people are entitled to a copy of the deceased’s Will:

  • any person referred to in the Will;
  • any person named or referred to in an earlier Will as a beneficiary;
  • spouse of the deceased;
  • domestic partner of the deceased;
  • parent, guardian or child of the deceased;
  • any person who would be entitled to a share if the deceased died intestate;
  • any parent of a minor referred to in a Will or who would be entitled to a share if the deceased died intestate; or
  • any creditor or person who has a claim against the estate and can produce evidence of such a claim.

If you fall within any of the above categories, you can write to the Executor or Administrator of the Estate and request a copy the deceased’s Will.

If the Executor/Administrator refuses to provide you with a copy of the Will, and a grant of Probate or Letters of Administration has been obtained, you can apply for a copy of the file from the Supreme Court of Victoria (Probate Registry) for a fee. The file will usually include the deceased’s Will, Death Certificate, Inventory of Assets and Liabilities and other pertinent documents.

What is the process of Contesting a Will in Victoria?

The procedure of contesting a Will depends largely on the strategy we employ in running your case. Every case is different, it all depends on the attitude of the opposing party. If the opposing party is willing to enter into settlement negotiations prior to the commencement of proceedings, then the issue of an early resolution of the matter can be explored. If the opposing party refuses to enter into negotiations prior to the commencement of proceedings, we will commence litigation on your behalf.

Below is a rough guide of how most will dispute cases will proceed:

Step 1: Investigate the nature of the estate and collate relevant information in support of your case.

Step 2: Notify the personal representative of the Estate or their solicitor of your intention to commence a family provision claim.

Step 3: Prepare your evidence in support of your case.

Step 4: Issue proceedings for your matter to be referred to a compulsory Mediation.

Step 5: Exchange evidence with the opposition.

Step 6: Attend the Mediation to negotiate a settlement with the opposition. Approximately 98% of cases settle at Mediation and a Court trial is therefore not required. In the event the matter does not settle, negotiations can still take after the Mediation.

Step 7: Prepare your case for a Court trial.

Once you have made the decision to contest a Will, you should obtain legal advice as soon as possible to discuss your prospects of success along with any other enquiry you may have. Any one of our will dispute experts is available to assist you with your enquiries. For your no obligation assessment, simply contact our office on 1300 600 935.

What factors does the Court take into account when contesting a Will?

Under Section 91 A(1) of the Administration and Probate Act 1958, the Court must consider the following in making an order for provision:

  • the contents of the Will;
  • any evidence of the deceased’s reasons for making the dispositions under the Will; and
  • any evidence of the deceased’s intentions in relation to providing for the applicant.

Under Section 91 A (2) of the Administration and Probate Act 1958, the Court may consider the following in making an order for provision:

  • the nature and length of the relationship with the
    deceased;
  • any obligations the deceased had to the applicant or the beneficiaries;
  • the size and nature of the estate and liabilities;
  • the present and future financial resources and needs of the applicant and beneficiaries of the estate;
  • any physical, mental or intellectual disability affecting the applicant or any beneficiary of the estate;
  • the age of the applicant;
  • any contribution of the applicant to the building up the estate or welfare of the deceased or the deceased’s family;
  • any benefits previously given by the deceased to any applicant or to any beneficiary;
  • whether the applicant was being wholly or partly maintained by the deceased and the extent and the basis of that dependency;
  • the liability of any other person to maintain the applicant;
  • the character and conduct of the applicant or any other person;
  • the effect of making a family provision order on the other beneficiaries; and
  • any other matter the Court considers relevant.

Section 91(4) of the Administration and Probate Act 1958, sets out the factors the Court must consider when determining the amount of provision to be awarded to an applicant.

What is the process of contesting a Will?

Every case is different.

The procedure of contesting a Will depends largely on the strategy we employ in running your case.

It also depends on the attitude of the opposing party:

  • If the opposing party is willing to enter into settlement negotiations prior to the commencement of proceedings, then an early resolution of the matter can be explored.
  • If the opposing party refuses to enter into negotiations, prior to the commencement of proceedings, then we will commence litigation on your behalf.

Below is a rough guide of how most Will dispute cases will proceed:

  • Investigate the nature of the estate and collate relevant information in support of your case
  • Notify the personal representative of the Estate or their solicitor of your intention to commence a family provision claim
  • Prepare your evidence in support of your case
  • Issue proceedings for your matter to be referred to a compulsory Mediation
  • Exchange evidence with the opposition
  • Attend the Mediation to negotiate a settlement with the opposition. Approximately 98% of cases settle at Mediation and a Court trial is therefore not required. In the event the matter does not settle, negotiations can still take place after the Mediation
  • Prepare your case for a Court trial

Once you have made the decision to contest a Will, you should obtain legal advice as soon as possible to discuss your prospects of success along with any other enquiry you may have.

What grounds can I contest, challenge or dispute a Will?

Some of the grounds include:

  • Being totally excluded or inadequately provided for under the Will or on intestacy
  • The Will was not executed correctly by the Will maker
  • The Will that was executed was not the last Will of the Will maker
  • The Will maker lacked capacity at the time of executing the Will
  • The Will maker was unduly influenced to make the Will
  • The Will maker did not know, understand or approve the contents of the Will
  • The Will was made in suspicious circumstances or there is evidence of Will tampering
If our matter goes to Court, what factors will they consider?

Approximately 98% of cases settle at mediation.

However, should your case be heard before a Judge under section 91 A(1) of the Administration and Probate Act 1958, the Court must consider the following in making an order for provision:

  • The contents of the Will
  • Any evidence of the deceased’s reasons for making the dispositions under the Will
  • Any evidence of the deceased’s intentions in relation to providing for the applicant

 

Under section 91 A(2) of the Administration and Probate Act 1958, the Court may consider the following in making an order for provision:

  • The nature and length of the relationship with the deceased
  • Any obligations the deceased had to the applicant or the beneficiaries
  • The size and nature of the estate and liabilities
  • The present and future financial resources and needs of the applicant and beneficiaries of the estate
  • Any physical, mental or intellectual disability affecting the applicant or any beneficiary of the estate
  • The age of the applicant
  • Any contribution of the applicant to building up the estate or welfare of the deceased or the deceased’s family
  • Any benefits previously given by the deceased to any applicant or to any beneficiary
  • Whether the applicant was being wholly or partly maintained by the deceased and the extent and the basis of that dependency
  • The liability of any other person to maintain the applicant
  • The character and conduct of the applicant or any other person
  • The effect of making a family provision order on the other beneficiaries
  • Any other matter the Court considers relevant

 

Section 91(4) of the Administration and Probate Act 1958, sets out the factors the Court must consider when determining the amount of provision to be awarded to an applicant.

How do I obtain a copy of the Will?

Under section 50 of the Wills Act 1997, the following people are entitled to a copy of the deceased’s Will:

  • Any person referred to in the Will
  • Any person named or referred to in an earlier Will as a beneficiary
  • Spouse of the deceased
  • Domestic partner of the deceased
  • Parent, guardian or child of the deceased
  • Any person who would be entitled to a share if the deceased died intestate
  • Any parent of a minor referred to in a Will or who would be entitled to a share if the deceased died intestate
  • Any creditor or person who has a claim against the Estate and can produce evidence of such a claim

If you fall within any of the above categories, you can write to the Executor or Administrator of the Estate and request a copy of the deceased’s Will.

If the Executor/Administrator refuses to provide you with a copy of the Will, and a grant of Probate or Letters of Administration has been obtained, you can apply for a copy of the file from the Supreme Court of Victoria (Probate Registry) for a fee. The file will usually include the deceased’s Will, Death Certificate, Inventory of Assets and Liabilities and other pertinent documents.

How do I challenge the validity of a Will?

To challenge the validity of a Will, a caveat must be lodged with the Supreme Court, Probate Registry prior to a grant of Probate of Letters of Administration being made. You must have reasonable grounds to lodge a caveat, otherwise you can be ordered to pay the estate’s legal costs in having your caveat removed. We recommend that you contact one of our Will dispute experts to obtain further information so as to avoid incurring unnecessary costs.

Can I still challenge the validity of a Will if a grant of Representation has been made?

You can still challenge the validity of a Will even if a grant of Probate or Letters of Administration has been granted. However, doing so would be much more difficult than challenging prior to the grant. The grant would have to be revoked by the Supreme Court.

What is testamentary capacity?

For a Will to be valid, the Will maker must have capacity at the time of making and executing the Will. This means that the Will maker must:

  • Understand that they are making a Will
  • Be aware and generally understand the nature of their assets and liabilities
  • Be aware of the people of whom they have a moral obligation to make provision for
  • Not be suffering from any illness or disorder affecting the mind to the extent that they are considered of unsound mind. Some of these disorders include but are not limited to:
  • Dementia
  • Alzheimer’s
  • Alcoholism
  • Delusions
  • Lack of capacity can be caused by the effects of medication and/or drugs
  • For those who suffer from a disorder affecting the mind, it is possible to make a Will during lucid periods and for the Will to be considered valid, if these four criteria are satisfied at the time of signing the Will.
What grounds can a Will be declared invalid?

A Will can be challenged and declared invalid for one or more of the following reasons:

  • The Will maker lacked capacity at the time of executing the Will
  • The Will maker was unduly influenced into making the Will
  • The Will maker did not know or approve the contents of the Will
  • The Will was not executed correctly by the Will maker
  • The Will that was executed was not the last Will of the Will maker
  • The Will was made in suspicious circumstances or there is evidence of Will tampering

If one or more of the above grounds are proved, a Court may exercise its discretion to declare a Will invalid. If the Will is declared to be invalid, then any previous Will of the deceased would be revived. If the deceased did not have a previous Will, then the estate will be distributed in accordance with the rules of intestacy under the relevant Act in each State.

What is an Executor or Administrator?

Executor: the person/s appointed under the last Will of the deceased to manage the estate affairs after the deceased’s death.

Administrator: the term administrator refers to a person appointed by a Court to administer the estate of a deceased who did not have a Will. The Court will usually appoint the person with the greatest interest or entitlement in the estate to act as the administrator. The administrator enjoys similar powers to those as an Executor of a Will.

What are the duties of the Executor or Administrator?

The duties of an Executor or Administrator are very similar.

The duties commence from the date of death and include, but are not limited to:

  • Arranging the funeral
  • Applying for a Death Certificate
  • Applying for a grant of Representation
  • Notifying the beneficiaries of the estate
  • Handling the daily tasks associated with the estate
  • Calling in, selling or converting the assets (depending on the Will)
  • Arranging the payment of reasonable expenses
  • Insuring the assets
  • Defending and upholding the deceased’s wishes under the Will
  • Acting in the best interests of the beneficiaries of the estate Holding the assets on trust until the expiration of the limitation date for a family provision claim is over
What are the types of grants

There are usually three types of grants a Court will issue.

Probate: a grant of Probate is issued to the Executor/s named in the last valid Will of the deceased.

Letters of Administration with the Will annexed: a grant of Letters of Administration with the Will annexed is usually made where the deceased has left a valid Will, but either the nominated Executor cannot or refuses to apply for a grant of Probate. The grant will generally be made to the person or beneficiary who has the greatest interest under the Will.

Letters of Administration: a grant of Letters of Administration is usually made in circumstances where the deceased died without making a valid Will. The grant is usually issued to the closest next of kin of the deceased i.e. a spouse or child.

Do I need a grant of Representation?

If the deceased died with assets that were not jointly owned and the value of the assets was somewhat significant, then a grant is usually required. Most banking and financial institutions will not liaise with, or release funds of the deceased, to a person who does not have the legal authority to handle the deceased’s estate.

There are some instances such as when the estate is of a relatively small value, where a grant may not be required. This will depend on the institution and inquiries should be made of each to determine whether the grant is required.

What are my rights as a beneficiary?

A beneficiary is someone who is appointed either under a Will or under the statutory scheme of intestacy to benefit in the deceased’s estate. Until the authorised Executor/Administrator has finalised the administration and is ready to distribute the estate, beneficiaries generally have limited rights.

The assets of the deceased confer to the Executor/Administrator until the final distribution is complete. Therefore beneficiaries will generally have no say in the administration.

If a beneficiary has a concern, then at the end of the administration they can request for the Executor/Administrator to furnish them with a complete accounting of the administration of the estate. If an Executor/ Administrator refuses to co-operate, the beneficiary can apply to the Supreme Court for assistance or for orders to produce the accounts. This enables the beneficiary to closely scrutinise or review the administration.

A situation may arise where an Executor/Administrator may abuse their authority, act negligently or dishonestly, or engage in fraudulent transactions. If any of these situations arise, a beneficiary may be able to make an application to the Supreme Court to have the Executor/Administrator removed or prevented from continuing to administer the estate.

Revocation of a grant of Representation

In some instances where a grant of Representation has been irregularly or unlawfully obtained, the grant itself may be revoked on application to the Supreme Court. Some of the reasons why a revocation may be required include, but are not limited to:

  • Discovery of a later Will
  • The last Will declared invalid
  • Obtaining the grant of Representation fraudulently
Who bears the legal costs of an Executor/Administrator defending a claim?

In defending a claim made by an eligible applicant, an Executor/Administrator is expected to obtain legal advice to defend the proceedings. Naturally any legal costs would be borne from the estate of the deceased, unless the Executor/Administrator acts unreasonably in settling the claim at the earliest opportunity.

How do I apply for the superannuation benefit?

On the death of a member, if they have not nominated a beneficiary under a BDN and you fall within the category of “dependant”, then you can make an application to receive the death benefits directly from the superannuation fund. Contact one of our experts today to assist you in making a claim.

What are Binding Death Nominations (BDN)?

Some superannuation funds will allow members to nominate a preferred beneficiary to receive their death benefits. A BDN will bind the Trustee of a superannuation fund if it is considered binding and valid. This means that the Trustee will not have the discretion as to where the death benefits are paid. A valid BDN cannot be altered by the Superannuation Complaints Tribunal or a Court.

There are two basic requirements for BDNs. Firstly, the superannuation fund rules must allow BDNs and secondly, the nomination itself can only name beneficiaries who are entitled to receive benefits under the SIS Act, as detailed above.

For a BDN to be valid and binding, it is required to:

  • be in writing
  • be signed and dated by the member of the fund in the presence of two independent adult witnesses
  • set out the proportion of the death benefit to be paid to the nominated beneficiary

A BDN will usually cease to have effect three years after it is signed. It is therefore imperative to review your nominations every three years. Depending on the superannuation fund, the time period may be shorter. The Trust Deed is therefore relevant in this regard.

Where the BDN does not comply with the requirements, the Trustee of a fund does not have the discretion to pay it to the nominated beneficiary. Instead, the death benefit will be paid to “dependants” within the meaning of the SIS Act.

How do I contest the decision of a Trustee to pay the death benefit?

A superannuation trust fund usually allows the Trustee the discretion to decide who should receive a deceased’s death benefit, within the range of eligible recipients. If you are not happy with the decision, contact us today to discuss your options in challenging the Trustee’s decision.

The Trustee will usually review your objections and make a decision after 28 days. If you are still not satisfied with the decision, an appeal can be made to the Superannuation Complaints Tribunal. There are time limitations in which you can make an application, therefore legal advice should be obtained as soon as possible.

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