Will & Inheritance Disputes

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.

For more information visit our website Contesting Wills Lawyers.

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.

Take The Next Step

At Gerard Malouf & Partners we offer a service of the first consultation free to ascertain details of your claim & explain our services that only require payment if the action we undertake on your behalf is successful.