April 11, 2019

Wills and Estates

While a person has freedom to make a will how they wish, there are a number of different types of challenges that may be available to you if you have:

  • been left out of or unfairly treated in a will; or
  • if a person dies without a will and the rules of intestacy (the law that states how an estate is to be divided if there is no will) do not adequately provide for you.

This article provides general information about the two main ways in which a will may be challenged:

  • Family provision applications (sometimes referred to as family provision claims or testator family maintenance claims as they were previously called); and
  • Challenging the validity of a will.

Have you been left out of a will or unfairly treated in a will/pursuant to the rules of intestacy?

Where an “eligible person” has been left out of or unfairly treated in a will or under the rules of intestacy, they can make a claim against the estate for a share or a larger share of the person’s estate. This type of claim is called a family provision application (or FPA).

Who can make a family provision application?

The law with respect to FPAs varies in each State and Territory of Australia. Generally speaking, those who are eligible to make an FPA against a person’s estate include the deceased person’s:

  • spouse (including de facto spouses and same-sex spouses)
  • children (including step-children and adopted children)
  • dependant (this may include a parent, grandchild, parent of a minor child of the deceased or a financial dependant)

How much will you receive out of a family provision application?

There are many factors that the court will take into account in deciding an FPA. These include:

  • The size of the estate
  • The circumstances and needs of the applicant
  • The applicant’s relationship with the deceased
  • The contributions made by the applicant to the building up of the deceased’s estate
  • Any services provided by the applicant to the deceased
  • The circumstances and needs of the beneficiaries (i.e. persons who benefit under the will or on intestacy) or other applicants and their relationship with the deceased

Each FPA is different and the amount an applicant will receive will depend on the facts of each specific case.

How long do you have to make a family provision application?

The time limits to commence an FPA also vary between the different States and Territories. For example, in Queensland an eligible applicant must give notice to the executor or administrator of the estate of their intention to make an FPA within 6 months of the date of the deceased’s death otherwise the estate may be distributed. They must then commence the application in court within 9 months of the date of the deceased’s death.

It is important that legal advice is obtained as soon as possible to ensure your rights to bring an FPA are protected.

You can find out more information on FPAs in QLD here and in NSW here.

DO YOU HAVE REASON TO BELIEVE THE WILL MAY BE INVALID?

A person may wish to challenge the validity of a will if they are a beneficiary or receive more under the deceased’s previous will/s or under the rules of intestacy and have reason to believe:

  • The deceased did not have sufficient mental capacity at the time they wrote their last will;
  • The deceased was unduly influenced in making their last will (e.g. by force, coercion or threats); and/or
  • There are suspicious circumstances surrounding the creation of the will (e.g. the will was drafted by the beneficiary).

These types of claims are called ‘solemn form proceedings’.

Examples of medical conditions that might impact on a person’s mental capacity to make a will include:

  • Alzheimer’s disease
  • Dementia
  • Brain injuries
  • Intellectual disabilities
  • Mental illnesses
  • Physical or mental conditions that cause confusion or delusions

This is not an exhaustive list but an example of some conditions that might affect a person’s testamentary capacity.

What is the time limit to challenge the validity of a will?

To contest the validity of a will, steps should urgently be taken following the deceased’s death to protect your interests.  While there are no time frames specifically by when such claims should be brought, most commonly steps should be taken:

  • Before a grant of probate or letters of administration have been issued by the court; and
  • Within 6 months of the date of death otherwise the estate may be distributed (This time limit applies in Queensland and may vary in each State and Territory).

You can learn more about grants of representation and solemn form proceedings here.

FURTHER Information. 

How long will an estate claim take?

There is a court process in each jurisdiction that dictates how these kinds of estate claims progress. Generally speaking, estate claims can take 6 to 12 months to resolve and much longer if the matter proceeds to trial.

What are the costs?

Costs depend on the type of claim and the stage at which the matter is resolved. If the matter resolves early, the costs will be significantly less than if the matter proceeds to trial.

McInnes Wilson Lawyers offer a range of fee options for clients which depend on the individual’s circumstances and the type of claim.

Will these claims go to court?

While estate claims are commenced in court, not many estate claims go to trial where evidence is tested and the judge makes a decision about the claim. Parties usually participate in mediation to attempt to resolve the claim and avoid the costs and uncertainty of trial.

Other types of estate disputes.

There are a number of other types of claims that may be made, such as:

  • Disputes about transactions that occurred involving the deceased’s assets before death
  • Disputes about the actions of the deceased’s power of attorney before death
  • Seeking to prove a lost wills
  • Seeking to prove an informal wills (wills that don’t meet the formal requirements of a will such as a video will, unsigned will, computer document, mobile telephone will)
  • Disputes about entitlements on intestacy (usually between an alleged de facto spouse of the deceased and the deceased’s other family members)
  • Superannuation death benefit claims
  • Disputes about a mistake in a will or the interpretation of a will
  • Disputes about the actions of the executor (e.g. breach of duties or delay in the estate administration / distribution)

McInnes Wilson Lawyers have a specialist team that deals with wills and estates servicing Queensland, New South Wales and the Australian Capital Territory. For more information please contact our Wills and Estates Team on 07 3231 0600.