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Contesting Wills

last will and testament
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Contesting Wills

PK Simpson Contesting a Will Lawyers provides the people of New South Wales with No Win No Fee* legal expertise. Contact PK Simpson now to contest an unfair will or dispute an estate.

We are unique in the area of Contested Wills, in that we do not charge you fees if we are not successful. We are confident that our lawyers have the experience and knowledge to help you achieve the best outcome.

Talk to us about Contesting a Will. Please ask one of our lawyers about our No Win No Pay Policy. Call us today on(02) 9299 1424.

 

CONTESTING A GRANT OF PROBATE OR LETTERS OF ADMINISTRATION

You may be able to contest a Grant of Probate or Letters of Administration, either before the grant has been made by the court, or even after the grant has already been made.

1. The Will is not valid

There are certain regulatory provisions that cover the validity of a will. For example, a will will be invalid if it is not the most recently made will, if it was altered after signature, or was not executed according to the requirements under the legislation. Further, ambiguity over the language used in the will may lead to invalidity.

2. The maker of the Will did not have capacity or was unduly influenced at the time

Under the Successions Act 2006 (NSW), there are strict rules as to who can make a will. Although everyone over the age of 18 can make a will, they must have the mental capacity to do so. These are issues that often arise where the will-maker is elderly, ill or intellectually disabled.

Testamentary capacity refers to the capacity to understand what a will is, to be aware in general terms of what they are disposing of and to have the ability to make the moral decisions involved in will making. Where a person lacks the capacity to make a will, an application may be made to have a court authorised will made, or an existing will altered or revoked.

A will may also be challenged on the grounds of coercion by someone who stood to gain much from it. Where a person has exerted undue influence, in the form of pressure, force or fear, the will may be set aside. However undue influence is not easy to prove. Flattery and persuasion to a certain extent is not unlawful. The court will only overturn a will where the influence is to such an extent, that the will-maker’s intentions were not followed through. These types of claims are normally only successful where there was a witness present, and a claimant will need to provide much evidence of the coercion.

3. A later or earlier Will should apply

A will may be invalid if another will is found that was made at a later date.

4. The Will was forged

A will may be challenged if it is suspected that it was forged. However, as with undue influence, it can be difficult to prove that a will is forged. The onus on proving that it is forged lies on the challenger. This means that, if you intend to challenge a will on the basis of fraud, you will need to produce evidence to support your claim.

5. Removal of executor/trustee

Where the appointed executor/trustee is not fulfilling his or her duties as required by law and in accordance with the directions under the will, you may be able to apply to the court to revoke the grant of probate or letters of adminstration in their favour, and have another appropriate person appointed in their place.

Left Out of a Will or Unfairly Provided For?

Left out of a Will? Unfairly provided for?

If you have been left out of a will, or included in a will but are unhappy or feel that the will is unfair, you may be able to make an application to the Supreme Court for a Family Provision order in your favour. You can also make a Family Provision claim where there is no will, and you are not happy with the statutory intestacy provisions. This involves an assessment of, first, whether you are an eligible person, and, second, whether adequate provision has been made for you.

Eligibility

Those who may make a Family Provision claim may include:

  • the wife or husband of the deceased person at time of death
  • a person with whom the deceased person was living in a de facto relationship at the time of their death (including same sex partners)
  • a child of the deceased person
  • a former wife or husband of the deceased person
  • a person who was, at any particular time, wholly or partly dependent on the deceased person, and at any time a member of the same household as the deceased person
  • a grandchild who was at any particular time wholly or partly dependent on the deceased person
  • a person with whom the deceased person was living in a close personal relationship at the deceased person’s death

Time Limitations

There are time limitations in every state as to when a Family Provision claim can be brought. In NSW, an application must be lodged within 12 months from the date of death, and in other states it can be as little as six months. In certain circumstances, you may be able to apply to the court for an extension of the time limitation. The factors the court will look to in deciding whether to extend the time for bringing a Family Provision application include the sufficiency of the explanation for the delay, whether there will be any prejudice to the beneficiaries, whether there has been any unconscionable conduct by any relevant parties, and the strength of the applicant’s case. Read more about Family Provision Orders.

What is taken into account?

Some of the matters the court will take into account in determining whether to make a Family Provision order in your favour include:

  • your financial or other need
  • the size of the estate
  • the nature and duration of your relationship with the deceased
  • your character and conduct
  • any expressed testamentary intentions of the deceased
  • any obligation the deceased had to provide for you
  • any other matter the court considers relevant

It is important to note that the court will compare your circumstances with those of any beneficiary named in the will, or any other potential claimant, when making a Family Provision order.

CONTESTING THE WILL

Case Preparation

The most important part is case preparation. This is because, without compiling the necessary evidence, a claim will not have the support it needs to succeed.

Case preparation involves determining the relevant legal issues, and compiling relevant evidence to support your claim. The sooner that evidence is compiled, the more tools we have to negotiate with, and the more likely we are to achieve an early settlement, saving you time and money.

Relevant evidence for a contested wills claim may include:

  • Details about the nature of your relationship with the deceased;
  • Details about the testamentary capacity of the deceased at the time of making the will;
  • Evidence of any financial support you have received from the deceased;
  • Details about the deceased’s will or estate;
  • Details about your own financial situation, including assets and any debts;
  • Details about the beneficiaries of the will, including their financial situation;
  • Details about your expectations from the will; and
  • Contact details of the executor/executrix and the estate’s lawyers.

Our lawyers will work with you to compile all of the relevant evidence and build a well-prepared case in order to ensure your claim has the best chance of success.

Negotiations

Once we’ve compiled evidence to ensure success, we will attempt to negotiate with the beneficiaries named in the will, via the executor or adminstrator, without commencing proceedings in court. Where the beneficiaries agree to change the terms of the will privately, the parties will enter into what is called a Deed of Family Arrangement.

Our contested wills lawyers have a wealth of experience negotiating on behalf of their clients, keeping in mind at all times their best interests and achieving the best possible solution.

Mediation

Where Family Provision proceedings are commenced in NSW, mediation between the parties is generally compulsory. The majority of contested wills cases will either settle at mediation, or shortly thereafter. Mediation involves negotiation between the parties, with the assistance of a 3rd party mediator. The role of the mediator is to help the parties come to an agreement. Mediation has many advantages, including reducing legal costs, finding out what the other side has to offer, and reducing the stress involved in attending court hearings.

Going to Court

In some cases, agreement cannot be reached in negotiation or mediation, and the dispute will proceed to court. Our lawyers will be there to help guide you through the court process, ensuring you understand how your case is progressing at all times.

We will ensure that you have the strongest case possible before attending court.

DEFENDING A CONTESTED WILL OR ESTATE

You should be aware of the different types of challenges that can be made for a will, including challenges to the validity of the will, and Family Provision Orders.

If you have been named in a will or appointed by the court to be the executor of a will or the adminstrator of an estate, you may have certain duties to defend the estate or attempt to uphold the terms of the will where a challenge has been made. There are a number of duties that relate to challenges, such as providing relevant information on request of a court.

Family Provision Orders

Where an executor receives notice that an application for a Family Provision Order has been made, they are under a duty to ensure the estate is preserved until a determination is made. This means they cannot distribute any part of the estate, such as property or other assets. If this duty is not followed, they may be personally liable for any loss of the applicant. There are some limited exceptions to this rule, such as where they act on legal advice and receive the consent of the beneficiaries.

Assisting the Court

The executor also has a duty to provide information to the court when requested concerning the deceased’s estate. The court may require information about the deceased’s financial affairs, or any documents that may be helpful in making determinations of family provision orders. For example, the executor may have access to documents that help to determine why a certain person was not accounted for in a will. The only exception to this duty is where the executor is under a legal obligation to keep the information confidential.

This will also include providing a written affidavit to the court detailing the deceased’s assets and liabilities, including valuations of any property. These will need to be provided both at the time of death, and on any application for a family provision order.

Dual Capacity

It is not uncommon for the executor of a will to also be a beneficiary of the will. This is an example of where the executor is acting in more than one capacity. Although normally separate representation is not deemed appropriate, where the executor has dual roles they must apply to the court for separate representation. This is in order to prevent any conflict of interest that may arise between their duties.

NO WILL?

What happens when there is no will?

When a person dies intestate (without a will), the deceased’s estate will be divided according to statutory provisions.

The laws differ from state to state, depending on the next of kin. In NSW for example, where the deceased left a spouse and children to that spouse, the spouse receives the entire estate, whereas where the children are from a previous relationship, the spouse receives all personal effects, a statutory legacy of $350,000 adjusted, and half the remainder (if any), with the children taking the other half in equal shares.

The disadvantages of this are obvious; the statutory scheme fails to take into account the individual circumstances of relationships between the deceased and their family members. For example, if there has been a falling out between members of the family, this will not be considered, and any wishes of the deceased will not be taken into account.

Often when a person dies intestate, people close to the deceased, such as a de facto partner, may be left without any provision. If you believe you have not been adequately provided for, you may be able to make a claim for a Family Provision Order. Call us today on (02) 9299 1424 to talk to one of our experienced contested wills lawyers about filing a claim. We offer a No Win – No Fee Service for contesting wills, believing that all Australians should have access to legal representation.

It is also very important to ensure that you have a valid will, and that your family members know where it is located, or else your wishes may not be carried out upon death. Call us today to get valuable advice – (02) 9299 1424

EXECUTORS AND PROBATE

An executor is a person appointed under a Will to carry out the wishes of the deceased person, as expressed in their Will. An appropriate person will be appointed by the court to be the administrator where there is no Will, or where there is no executor willing and able to act.

What does an executor/administrator do?

The role of the executor/adminstrator is to:

  • locate the latest valid will
  • assist the family, if necessary, with funeral arrangements
  • obtain the death certificate
  • identify the deceased’s assets and liabilities
  • obtain probate/letters of administration – if required
  • ensure payment of any debts
  • distribute gifts and assets as specified under the will or intestacy provisions

While many people appoint their spouse or other family member as their executors any adult can be appointed and in some instances key advisors such as accountants or lawyers are appointed.

Only one executor is required but often several are appointed and substitutes can also be included in the event your first choice of executor is unable or unwilling to act when the time comes.

While the legal responsibility for the correct administration of a will rests with the executors it is usual for them to seek advice from an experienced probate lawyer. The legal nature of the process makes it difficult for most executors to carry it out on their own.

What is probate?

Probate is simply a statement from the Supreme Court that confirms the validity of the will and allows the executor to distribute the estate of the deceased person in accordance with the will.

In some instances probate may not be required if the estate is only small and comprises simply a motor vehicle or bank accounts and personal effects. However, executors who administer an estate without probate remain personally liable for the debts of the estate and the distribution of the gifts to the beneficiaries.

Where there is no will or formally valid will, the court will grant what is called Letters of Administration, which is similar to a Grant of Probate.

Do I need a probate lawyer?

If you are an executor you should always consult a probate lawyer before taking any action. Some wills may specify that an executor seek the advice of a particular lawyer or firm but generally you can work with any lawyer of your choosing.

Remember that as an executor under a will you have legal responsibilities that should be taken seriously.

A probate lawyer, or lawyer with experience in estate administration, can advise you on:

  • your legal responsibilities including important time restraints
  • the most effective way to deal with the estate assets and liabilities
  • the legal tasks required during the administration of the estate
  • whether probate is required

Acting as an executor can be a stressful and time consuming process, particularly for larger estates, but the right choice of an experienced probate lawyer can ease the burden considerably.

If you are an executor under a will talk to a probate lawyer here at PK Simpson for the advice you need to fulfill your legal responsibilities and ensure the estate is administered in the way the deceased person intended. (02) 9299 1424.

LIFE INSURANCE CLAIMS

At times, a deceased may have made a separate nomination for a specific beneficiary for that policy.

This means that the policy will not form a part of the deceased’s estate, and the beneficiaries of the will (along with anyone claiming Family Provision) will not receive any benefit from the policy.

However, there may be ways in which the policy can instead be included as part of the estate. This is a complicated area of law, and so we advise that you seek legal advice from those with extensive experience in contested wills law. If you are a beneficiary of a will, or are intending to file a family provision claim, our lawyers will be able to advise you on how to best proceed, ensuring the best outcome for you.

We are also unique in offering No Win – No Fee service in the area of contesting wills. We are dedicated to helping you achieve the best outcome, guiding you through every step of the process.

So give us a call today on (02) 9299 1424 to set up a free initial consultation.

SUPERANNUATION CLAIMS

There are two primary ways that superannuation policies will be dealt with on the death of the policy holder.

The deceased may have nominated specific beneficiaries under their superannuation policy. This nomination may be binding, in which case the superannuation trustee is required to distribute the death benefit to the nominated beneficiaries. The nomination may be non-binding, or the binding nomination may have lapsed, in which case the trustee has discretion to distribute as it sees fit. In this case, the trustee may choose to distribute as per the deceased’s wishes expressed in the will, may choose to give the funds to the executor or administrator to be included as part of the residue of the estate, or to take into consideration taxation benefits that may apply.

If you are planning on making a Family Provision claim, you should take steps to determine whether a superannuation policy exists at the time of death, and the method by which it will be managed. Where the deceased has made a nomination for a specific beneficiary, those who are beneficiaries under the will, and those filing family provision claims, will miss out on the benefits of this asset. However there may be certain actions that can be taken in order to have the funds included in the deceased’s estate.

Our contested wills lawyers can advise you on the best course of action to ensure that your Family Provision claim provides you with the financial support that you need. And best of all, we are unique in offering a No Win No – No Fee service in contesting wills.

So give us a call today (02) 9299 1424 to set up a free initial consultation.

NO WIN – NO FEE

At PK Simpson, we are unique in offering a No Win – No Fee Service in the area of Contested Wills.

How does it work?

Contest a will? We know that costs are one of the greatest concerns for most people who are considering challenging a will. We will set out a written costs agreement for you right from the outset, so that, if successful, you know exactly where you stand.

We are so confident in our abilities that, if your case is unsuccessful, you won’t be required to pay any legal fees.