Wills & Deceased Estate Lawyers

What is Deceased Estate Law?

It’s often only after the death of a loved one that you become familiar with the complexity of estates. Simply put, before an individual dies they nominate an Executor in their Will. The Executor is obliged to look after their assets, debts and affairs once that individual passes. The assets are not only held personally, but there can be funds held in trusts, superannuation accounts and other joint holdings.

Before the estate can be distributed, the executor must apply for authority from the Supreme Court. This is also known as obtaining “probate of the will.” Obtaining a probate of Will is sometimes unnecessary depending on the type of property and assets available. However, if there is no executor appointed and no Will, then an application must be made to the Supreme Court for appointment as the administrator of the estate.

As an Executor of an estate, it’s not unusual to start feeling overwhelmed by the intricacies of distributing their assets, which is why it’s important to speak with the experts at Kerin Lawyers who can guide you through the process.

Learn more about the role of an executor.

How to Dispute a Will?

The term ‘disputing (or contesting) a will’ can mean many things however in relation to Deceased Estate Law it’s most likely in relation to the fact that you feel you weren’t provided adequate provision in the Will, or you weren’t listed as a beneficiary of the will and feel you should be.

If you believe that adequate provision has not been made in the Will of a deceased loved one you may be able to contest the Will.

The most common way to contest a Will is through a Family Provision Application. These Applications are made under the Succession Act 1981.

Are you eligible?

To successfully dispute a Will, you must be an eligible person in relation to the deceased’s estate. Usually this would mean you are;

  • Wife, husband, de factor partner of the deceased;
  • Children and step-children of the deceased;
  • Any person who was dependent on the deceased at the time of the deceased’s death

The steps and time limits to disputing a Will

If you are eligible and want to dispute a Will you need to act quickly as there are strict time limits that apply in all states and territories throughout Australia.

In QLD, the following time limit that government family provision claims are;

  1. You are required to provide notice of a family provision claim within six (6) months of the deceased’s date of death to the personal representative of the deceased estate.
  2. A Court proceeding must be commenced within nine (9) months of the date of the deceased’s death. During this time period, any supporting affidavit material must be filed with the Court and served to the personal representative of the deceased Estate as well.

If you fail to comply with these time limits without reasonable explanation, it will not be possible to make a family provision claim.

Once you make a family provision claim within these time limits, a mediation process will be held before any claim proceeds to trial. A large percentage of family provision claims are resolved without having to proceed to trial.

How Kerin Lawyers can help you?

When you have lost someone close to you, dealing with Wills and Estates can become confusing and overwhelming during this emotional time. The experts of Will dispute and estate law at Kerin lawyers can guide you through the process to ensure you’re handling the estate the way the deceased intended it to be handled.

We observe the following policies; No Win, No Fee, No litigation loans and free initial, no obligation consultations.

Call us on 1300 LAWYER or 1300 529 937 and schedule an appointment today.

FAQ

What is a Will?

A Will is a formally prepared legal document which is used to transfer an estate to nominated beneficiaries after the testator (the person that makes the Will) passes away.

Do I need a Will?

It’s important to have a Will to ensure you have sole discretion over the distribution of your assets. Your will states how you would like your belongings (cars, family heirlooms, property etc.) to be distributed and who receives them.

If you don’t have a Will when you die, the state will oversee the distribution of your assets according to a set formula. This could mean that half of your estate goes to your spouse and the other half goes to your children. A scenario like this could result in the sale of a family home or other assets which can negatively impact on your family by creating financial and emotional difficulties. 

If your children are minors, this can also create further complications as the court will appoint a representative to look after their interests.

What is probate?

When a person dies, it is usually the executor who administers the estate and handles the distribution of their assets. In some cases, it is required to obtain a legal document called ‘A Probate of Will’ which ensures that the author of the Will has died, the Will is authentic and the executor is who they say they are.

What is a Family Provision Application and am I eligible to make one?

The most common way to contest a Will is through a Family Provision Application. These Applications are made under the Succession Act 1981.

A Family Provision Application allows a person to demonstrate that adequate provision has not be made from the deceased estate.

However, there are only a few people who are eligible to make this claim including;

  • Wife, husband, de factor partner of the deceased;
  • Children and step-children of the deceased;
  • Any person who was dependent on the deceased at the time of the deceased’s death

 

Did I receive adequate provision from the estate?

The Court must decide whether you received adequate provision for your ‘proper maintenance & support’.

To determine this, the following relevant factors are considered:

  • Size of the estate;
  • Financial means & responsibilities of the Applicant;
  • Age, sex and health of the Applicant;
  • Services to the Applicant;
  • The Applicant’s expected provision from the estate;
  • Promises to the Applicant;
  • Benefits received from the deceased already;
  • The relationship between the Applicant and the deceased;
  • The duty of the deceased to provide for family members.

If you believe that you have not received adequate provision under a deceased loved one’s Will contact us today so that we can work with you to assess the issue and resolve the problem.

Who can dispute a Will?

According to the Succession Act, eligible applicants will fall within any of the three categories below;

Spouse

  • The deceased’s husband or wife;
  • The deceased’s de facto partner;
  • The deceased’s registered partner; and
  • The deceased’s dependant former husband, wife or registered partner.

Child

  • The deceased’s biological child;
  • The deceased’s unborn child;
  • The deceased’s lawfully adopted child; and
  • The deceased’s stepchild.

Dependant

For a person to be considered a ‘dependant’ they must have been “wholly or substantially maintained” by the deceased person at the date of the deceased person’s death. This may include;

  • The deceased’s parent;
  • A parent of a child of the deceased (deceased’s child must be under 18)
  • Any child under 18 who was being maintained by the deceased at the date of death, regardless of their relationship with the deceased (ie. The deceased’s niece, nephew, foster child, brother or sister).

Do any time limits apply?

There are strict time limits that apply to a Family Provision Application.

You must notify the personal representative of the deceased’s estate of application within six (6) months of death. Further, the application must be made within nine (9) months of death.

Contact us today to ensure that you do not lose your right to make an Application.

How much does it cost to dispute a Will?

Kerin Lawyers operates on a No Win No Fee basis which is usually available for claims relating to Will disputes. Sometimes there may be variable costs depending on the case however this will be communicated with you from the very beginning.

Do Will disputes go to court?

A large percentage of Will disputes will be settled in the mediation process before going to court. 

What is a Court Ordered Will?

A Court Ordered Will can be divided into three categories according to the basis for the Will being created:

Lost Capacity: This refers to when a person had capacity but has lost it later in life. An example of this could be due to an illness or accident. This means the previous valid Will they had completed may not be appropriate to their current circumstances. 

Nil Capacity: If a person suffered an illness or accident from birth or in early infancy which caused loss of capacity, they will never have the required capacity to make a Will. 

Pre-empted Capacity: This is when a person previously had the capacity to express reasonable wishes or to form a relationship which should be recognised in the Will, but has now lost that capacity. 

 

I am the executor of an estate and the Will is being contested:

If you are the executor of an estate and receive notice that the Will is going to be contested, you should seek legal advice immediately. A Will dispute lawyer can inform you of your rights and obligations to ensure you are prepared to approach Will challenges with the right information. 

As an executor, you can consider the following factors when a Will is being contested:

  • Is the individual disputing the will eligible? 
  • Have they made a claim within the time limits? 
  • Do you think it would be better to settle out of court or have a judge involved? 

Worst case scenario; the claimant might decide to take legal action against you if they feel you did not sufficiently perform your duties as the executor of the Will. This could leave you directly out of pocket if you don’t seek the right legal advice. 

 

Are there other avenues to contest a Will?

A Will can be contested for a number of reasons, including:

  • Undue Influence: Where the deceased executed a Will that did not reflect their wishes due to the influence of another party.
  • Lack of Capacity: Where the deceased did not have legal capacity, in other words sound mind, memory and understanding, to execute a Will.

If you believe that a deceased loved one’s Will was executed under the above circumstance or have any other questions, contact us today so that we can work with you to assess the issue and resolve the problem.

What happens if my loved one did not have a Will?

When a person dies without a valid Will, the Supreme Court will appoint an administrator for the estate. The administrator is the equivalent of an executor. The administrator appointed will normally be a beneficiary which is someone who will receive a share of the estate. However, if there is no suitable beneficiary available and willing, then a Public Trustee will get involved.

The spouse or de factor partner will receive everything if there are no children. If there are children, half of the estate goes to the children equally. If there are no children or a surviving partner, the following beneficiaries are considered;

  • Parents
  • Brothers and sisters
  • Half-brothers and sisters
  • Grand parents
  • Aunts and Uncles

 

 

 

 

 

We are independent lawyers acting for everyday Queenslanders

Apply for a Free Consultation

Or Call Us On:

📞1300 Lawyer
(1300 529 937)

Enquire Online