Estate Litigation
Estate disputes are not uncommon, but they are a complicated part of estate law. They involve difficult family dynamics, and a strict application of legal principles.
Based in the Toowoomba City, but providing legal services to the broader Darling Downs and South East Queensland region, our experienced team offers dependable services to assist you with disputes regarding wills. Our Estate Lawyers pride themselves in delivering honest advice and well considered plans to tackle these tough moments. We want to work with you as your matter progresses.
Our estate lawyers will sit down with you to obtain a comprehensive overview of the matter and to understand your concerns. Our solicitor will work with you to provide clear and direct explanations of the process, create a plan for the dispute at hand and to execute that accordingly.
It is important that you seek legal advice as soon as possible as strict time limits apply.
Family provision claims
A family provision claim is also known as an application for further and better provision. Whilst the law recognises each persons right to choose who are beneficiaries of their estate, it also enables someone who has been left out of a will entirely or who have been inadequately provided for in their circumstances to make an application. Such an application is made to the Supreme Court of Queensland.
Who can apply
To be eligible to apply you need to be either a spouse (married or de facto), children (including step or adopted children), or a dependent of the deceased.
What to prove to be successful?
The Court applies a two step test in assessing these applications.
Firstly, did the deceased person fail to make adequate provision for the proper maintenance and support of the person applying? Consideration of whether there was inadequate provision will turn on the specific facts of each matter.
If satisfied, determine what provision should have been made, by considering all relevant factors. This can include consideration of the circumstances and nature of the relationship with the deceased person and other beneficiaries, and any required future health care or support.
Challenging the validity of a will
In order for a document to be considered a valid will, they must comply with a number of rules as set out in the Succession Act. One of the reasons why it is advisable to see experienced estate planning lawyers when preparing your last will and testament is to ensure it complies with these requirements.
Notwithstanding the best intentions when preparing a Will, it can still be held to be invalid for a number of different reasons. Examples of this are due to undue influence, the formal requirements for making a will were not complied with, a term(s) of the will is not practically enforceable, or there was a lack of testamentary capacity at the time that the will was prepared.
Undue influence
The validity of a Will can be challenged if the person making the Will was unjustly influenced by someone who benefited by the making of that will. This often occurs in circumstances of elder abuse, or where the person making the will is particularly vulnerable due to illness, age or dependence.
It is important that you obtain legal advice as soon as possible if you believe that a person’s will does not accurately reflect their wishes held during their life.
Lack of testamentary capacity
Wills can be deemed invalid if a Court finds that the person making the will was so unwell that they did not have the legal capacity to write a will at the time or they did not properly understand what they were doing. This could be because of a medical diagnosis, prescribed medication they are taking or other circumstances which apply at the time of making the will.
Applications of this nature can be difficult, as they require attention to detail and absolute precision when it comes to the preparation of evidence, particularly supporting expert evidence.
Defending litigation on behalf of the Estate
If you are the Executors of an Estate, you may receive notice of a dispute during your usual estate administration process.
Should you receive notice of a dispute, it is imperative that you do not continue with the estate administration process until you have sought independent legal advice from an experienced wills and estates lawyers.
If you proceed with the distribution of the Estate, even after you have received notice of a possible estate dispute, then you can be held personally liable. This means that if you fail to protect the estate assets and property of the Estate pending the resolution of such a dispute, then you can be personally responsible for any payment to the person disputing the Estate.
As the Executors of an Estate it is your responsibility to uphold the wishes of your family member or friend. It is imperative that you work with lawyers who understand the applicable practice areas but who also are empathetic to your family situation.
Our team is available to provide advise to assist during this challenging time.
Our team are able to assist you with making an application, and are well versed at acting for the Estate and defending these types of applications.
Estate Litigation FAQ’s
Are there any time limits I should be aware of?
You are required to serve the Executor of the Estate with a Family Provision Application notice to apply for further provision from the estate within 6 months from the deceased’s date of death.
After 6 months of the deceased’s death, if the Executor has no notice of a claim, they are at liberty to distribute the estate.
You must file your Application setting out your claim in the Court and serve it on the Executor/s within 9 months from the date of death.
These are very strict time limits and failure to meet them can impact your matter.
Be sure to get legal advice as soon as possible.
What makes a Will valid?
What happens if a Court finds a Will is invalid?
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