Contesting a Will FAQ's

  1. Why I am not entitled Claim?
  2. Is this all that must be established for a valid Family Provisions Claim?
  3. When is Moral Obligation determined?
  4. What factors are taken into account when the Court is determining Need?
  5. Can a Step Child make a Family Provisions Claim?
  6. My Grandparent passed away, can I claim on their estate?
  7. What elements are needed to establish dependency?
  8. My Uncle passed away, can I claim on his estate?
  9. My Friend passed away, can I claim on their estate?
  10. My Step Mother and Father had similar Wills, she has now changed hers.
  11. My sibling(s) got more than I did, is there something I can do?
  12. Everything was left to a charity, is there anything I can do?
  13. I am in New South Wales but it is a Queensland Estate, can we do anything from here or do I need a Queensland Lawyer?
  14. The probate documents say the estate only has a house in it, but I am sure there was more, what can I do about it?
  15. How do I make sure that I get what I am entitled to?
  16. When do I have to make a claim?
  17. My parent was acting strange at the time they made their Will, how do I make sure the Will is valid?
  18. Who has priority, a widow or a child from a former marriage?
  19. Who has priority a child from a former marriage or a child from a present marriage?
  20. I come from a traditional family and everything was left to the eldest child is there anything that can be done?
  21. I have been left out of the Will and I do not have any needs, but my siblings are also financially comfortable, is there anything that can be done?
  22. There is very little in the estate and we are all poor, is there any point fight the estate so only the Lawyers win?
  23. My parents and I had a fight as they did not like my partner. I have been left out of the Will, is there anything I can do?
  24. My parent and I had a fight as I was abused as a child. I have been left out of the Will, is there anything that I can do?
  25. My parent and I have not spoken for years. I have been left out of Will, is there anything I can do?
  26. My parent and I did not argue however we have not spoken for some time. I have been left out of the Will, is there anything I can do?

Managing partner of GMP Contesting Wills Lawyers Reg Kolokossian explains who is an eligible person to contest a will in Australia. You can find the answer to other contesting a will legal questions in our Law Talk series of videos.

Q1. Why I am not entitled Claim?

A. It is generally accepted that when a person passes away they have a right to leave their property to whomever they wish, and for this reason they create a Will leaving their final wishes and directions as to how to distribute their property. In most cases the deceased will leave that property to family, namely children, spouses, life partners or parents, but in those cases where the estate has been left to third parties such as doctors, friends, a single child, charities or someone outside the immediate family, there is an avenue certain family members, or dependant members of the household, can pursue to ensure they get what they rightly deserve.

The Family Provisions Act 1982 (NSW) allows a number of 'eligible persons' to contest the Will of a deceased person. These 'eligible persons' are:

a) The wife or husband of the deceased person at the time of their death (this includes de-facto partners and life partners).

b) A child of the deceased, or a child of a domestic relationship with the deceased

c) A former wife or husband of the deceased

d) A person:

(i) who was, at any particular time, wholly or partly dependent upon the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member

To bring an action against the estate of a deceased person, you must fall within one of the above categories of 'eligible persons'.

 

Q2. Is this all that must be established for a valid Family Provisions Claim?

A. Once you have established that you are and eligible person, you must show to the Court that there is some reason, some need that will warrant the court changing the last Will and testament of a deceased person and give you some financial benefit. You must also show to the Court that given your relationship to the deceased person, there is a moral obligation on them to provide for your maintenance, education and advancement in life.

In essence, what has to be established is that given your financial situation and position in life, the deceased should have provided you with a legacy so as to allow you to have a better standard of living that given your financial situation and position in life, the deceased should have provided you with a legacy that will allow you to struggle less in life or maybe provide a better life for your own family.

If you are an 'eligible person' and there is a moral obligation on the deceased to provide for your maintenance, education and advancement in life, the Court will review your financial situation, and if need is established, alter the last Will and testament of a deceased.

 

Q3. When is Moral Obligation determined?

A. If you are a spouse, life partner or de-facto of the deceased, upon proving the relationship, moral obligation is assumed. This assumption also applies to children, adopted children or children of a de-facto relationship the deceased was in at the time of death. However this assumption can be removed if it is identified that the deceased and the claimant were estranged and there is no need warranting an award.

If it can be shown to the Court that some contact was maintained between yourself and the deceased, however occasional, this may satisfy the test which places a moral obligation on the deceased to provide for your maintenance, education and advancement in life.

It is noted that in the matter of Nicholls v Hall & Ors [2007] NSWCA 356, a recent decision of the New South Wales Court of Appeal, 'Bare Paternity' was determined to be sufficient to warrant an award under the Family Provisions Act. Justice Young on 12 December 2006 found that:

"Accordingly, the picture painted by the evidence, which I accept, is that the plaintiff had no contact with his father for the first 36 years of his life. Thereafter there were 11 telephone calls in eight years. There was no exchange of presents at birthdays or Christmas, not even an exchange of cards. The plaintiff only ever saw the deceased on two days in 1995. He did not see the deceased at all nor make any contact with him for the last two years of the deceased's life and he never attended the funeral. Furthermore, he appears to have given an excuse for not attending the funeral which was not genuine."

Their Honors Mason P, Hodgson JA and McColl JA on 13 December 2007 found that:

"In assessing the strength of moral claims, the Court can have regard to (1) all aspects of the relationship between the applicant and the deceased, and (2) all aspects relating to needs of the applicant. These matters would be considered having regard also to (3) the size and nature of the estate, and to (4) other legitimate claims on the estate, each of which would also involve some consideration of the relationship of a claimant to the deceased and the needs of that claimant. When a moral claim has been assessed in that way, that does not determine whether an order should be made, but only informs what the Court would find to be "adequate" and "proper". Certainly, in our opinion, a finding that an applicant has been left without "adequate provision" for "proper maintenance" does not necessarily mean that the deceased failed in any obligation; although it can loosely be expressed in terms that there was a moral claim that, in the event, was not met.

There are some statements in the cases that could be understood as meaning that, if there is nothing more than "bare paternity" in factor (1), the relationship between the applicant and the deceased, then the applicant cannot succeed. In our opinion, such an understanding would be plainly wrong. Even if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors (that is, needs, size of estate and lack of competing claims), a court could find that that child was left without adequate provision for proper maintenance."

Essentially, if you have been estranged from your family for various reasons, or the deceased did not even know of your existence, this does not prohibit you from making a claim under the Family Provisions Act. Existence or non-existence of a relationship with the deceased is not the deciding factor in claims on the estate of a deceased.

You must prove to the Court, that given the size of the estate, the competing claims on the estate and your financial and medical situation, the Court should determine that provision be made for you from the estate. We must prove your financial situation along with all medical and education needs, and we must also attempt to outline to the Court the financial situation of all other persons who may have a claim on the estate of the deceased.

Once all these factors have been taken into consideration the Court will determine if the needs of the estranged child are sufficient to warrant the Court altering the last Will and testament of the deceased.

 

Q4. What factors are taken into account when the Court is determining Need?

A. In Family Provision Act claims, the Court attempts to identify if the maintenance, education and advancement in life of an applicant has been provided for under the terms of the Will of the deceased. The Court will then look at a person's current finances, such as mortgage repayments, rental situation, age of vehicle and household appliances, child education needs or tertiary educations needs, medical expenses and prospective future medical expenses. In essence, the Court will look into an applicant's whole situation and identify that given their current financial situation and need for future expenses, be it personal or medical, the Will of the deceased should be altered to make an award for the applicant.

The Court will not always alter the Will of a deceased. If your children go to a private school, you have employment, you own the majority of your home and you do not have any ongoing medical needs, it is unlikely that a Court will award that the Will of the deceased be altered. However, if you are renting, your children go to public schools and you are receiving a low income or receive government benefits, it is likely that a Court will alter the Will of the deceased.

These are two examples of the higher and lower end of Family Provisions Claims. Each case is determined on its own facts; the applicant must establish that they have a need warranting the Court to make provision for them from the estate.

 

Q5. Can a Step Child make a Family Provisions Claim?

A. Step Children do not have an automatic right to approach the Court for provision from the estate of a deceased parent; they are not automatically 'eligible persons'.

Step Children are not prohibited from making a Family Provisions Claim, however they must establish that they are an 'eligible person', namely that they are:

A person

(i) Who was, at any particular time, wholly or partly dependent upon the deceased person, and

(ii) Who was at that particular time or at any other time, a member of a household of which the deceased person was a member

What must be established here is that such a person was dependant on the deceased.

If it can be shown that you are dependent on the deceased, and you were at some point in time, part of the deceased?s household, you may be able to succeed in a Family Provisions Claim.

 

Q6. My Grandparent passed away, can I claim on their estate?

A. Grandchildren do not have an automatic right to approach the Court for provision from the estate of a deceased grandparent; they are not an automatic 'eligible persons'.

Grandchildren are not prohibited from making a Family Provisions Claim, however they must establish that they are an 'eligible person', namely that they are:

A person

(i) Who was, at any particular time, wholly or partly dependent upon the deceased person, and

(ii) Who is a grandchild of the deceased person

What must be established here is that such a person was dependant on the deceased. This means both a financial and emotional dependency, however generally an award will only be made when the role of the grandparent is more akin to a parental role. Occasional financial gifts do not qualify.

If it can be shown that you are dependent on the deceased, and you were a grandchild of the deceased, you may be able to succeed in a Family Provisions Claim.

 

Q7. What elements are needed to establish dependency?

A. Generally the Court will look at the financial dependency of an applicant on the deceased. This ranges from paying for education to regular purchase of clothing or some other form of monetary assistance.

The Courts have determined that financial assistance is the most common form of dependency however recent decisions have identified that emotional dependence will be taken into consideration.

In Ball v Newey (1988) 13 NSWLR 489, Samuels JA said:

"While it is true that here we are concerned with financial dependency and not emotional dependence, the whole relationship between the appellant and the deceased must be examined"

In Petrohilos v Hunter (1991) 23 NSWLR 559, Hope A-JA said:

"The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that "'?Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed"."

"Surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense, they are valueless, is simply wrong."

"The same considerations apply to a step-child or his or her step-mother, when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example, by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period"

If it can be shown that you are dependent on the deceased you may be able to succeed in a Family Provisions Claim. There are many forms of dependency and each case is determined on its own facts the applicant must establish that they have a particular dependency warranting the Court to make provision for them from the estate

 

Q8. My Uncle passed away, can I claim on his estate?

A. Nieces and nephews do not have an automatic right to approach the Court for provision from the estate of a deceased uncle or aunty; they are not automatic 'eligible persons'. They must establish that they are an ?eligible person?, namely that they are:

A person

(i) Who was, at any particular time, wholly or partly dependent upon the deceased person, and

(ii) Who was at that particular time or at any other time, a member of a household of which the deceased person was a member

What must be established here is that such a person was dependant on the deceased and part of their house hold. If it can be shown that you are dependent on the deceased, and were at some point in time part of their household, you may be able to succeed in a Family Provisions Claim.

 

Q9. My Friend passed away, can I claim on their estate?

A. Friends do not have an automatic right to approach the Court for provision from the estate of a deceased parent; they are not an automatic 'eligible persons'. They must establish that they are an 'eligible person', namely that they are:

A person

(i) Who was, at any particular time, wholly or partly dependent upon the deceased person, and

(ii) Who was at that particular time or at any other time, a member of a household of which the deceased person was a member

What must be established here is that such a person was dependant on the deceased and part of their house hold.

I was promised something before they passed away, but I was not included, or sufficiently cared for in their Will.

There may be times when a deceased person, prior to death, made a promise to you, that in return for a service (generally care in old age or some other form of maintenance), a particular item or monetary sum would be left to you in their Will. This situation forms a Constructive Trust, and where you have suffered detriment in upholding your side of the bargain, such as time and labour, and the detriment is proven, the Courts have determined that the bargain is valid and you will be entitled to the variation of the Will.

 

Q10. My Step Mother and Father had similar Wills, she has now changed hers.

A. There may be situations where in anticipation of death a parent and a step parent make Mutual Wills. Their Wills are made in contemplation of each other and have identical terms and paragraphs. This is done in protection of the step children. The Courts have recognised that this is a contractual agreement between the deceased and the step parent, an agreement that cannot be altered as the subjects of the agreement, namely the children, are still alive.

In this situation, the new Will of the step parent will be challenged in its entirety and generally the previous Will is enacted.

 

Q11.      My sibling(s) got more than I did, is there something I can do?

A. Within Australia a person’s Will is paramount however this is not always the case if they leave behind persons who should have been the object of the testamentary intention. Children are such persons and many testators, for reasons known only to them, will favour one child over the other. The reasons vary which may or may not have a bearing on the case.

At Gerard Malouf & Partners we have run many such cases where, for reasons that are not apparent to our clients, they were not sufficiently provided for or left significantly lower portion of the estate as opposed to their siblings. In cases such as these we will analyse the perceived reason for the discrepancy and establish that such a division is ill-founded and not substantiated by law.

In circumstances such as these we will be able to convince a Court that there should be a greater equality between the siblings through analysis of financial position and establishing that a greater provision should be made to yourself.

In short, if a Will seems to be unfair in its division of the deceased’s assets between siblings, we are able to bring such a equality before the Courts and ensure that a claimant receives a greater portion of their parent’s estate.

 

Q12.      Everything was left to a charity, is there anything I can do?

A. Within the legislative framework of Australia a testator who has the capacity to make a Will can leave his or her assets to any person they so choose, this includes charities. What then must be undertaken is analysis of the relationship between the deceased and the person making a claim. In circumstances where we are able to establish that a person has a valid claim on the deceased’s estate we can then enter into a review of whether the estate assets should remain with the charities or divided amongst the applicant(s).

In these circumstances we must establish the potential applicant has financial need warranting a claim. When a charity is the primary, or only beneficiary, convincing a Court that the applicant, and not the Charity, should retain the funds is almost a certainty.

Often charities do not challenge claims by valid applicant(s) to the conclusion of trial, rather in cases where charities are involved the vast majority of these resolve at mediation ensuring that all parties, including the charity, are beneficiaries of the deceased’s assets.

Ultimately where a charity is involved eligible applicant(s) can, and should, make claims on the deceased’s estate.

 

Q13.      I am in New South Wales but it is a Queensland Estate, can we do anything from here or do I need a Queensland Lawyer?

A. When looking for a solicitor to represent your interests in an estate matter ensuring that solicitor is local to where the person passed away is not a paramount concern that you should have. The question that must be answered is “does my Lawyer have the knowledge and experience to represent my interest?”

At Gerard Malouf & Partners our expert Contested Will Team have the knowledge and the experience to challenge cases in Queensland, New South Wales, Victoria, Western Australia and all other states or territories of Australia. We have the support staff, barristers and agents that allow us to affectively challenge an estate from anywhere in Australia and represent the interests of any person who has a valid claim on the estate of another.

The solicitors at Gerard Malouf & Partners will do what is required to ensure that your rights are protected and are able to negotiate the various legal mine fields across Australia so as to ensure that if assets or estates span across multiple jurisdictions we are also able to protect your interests.

In short you do not require a Queensland Lawyer for a Queensland estate, you need a lawyer that knows what they are doing.

 

Q14.      The probate documents say the estate only has a house in it, but I am sure there was more, what can I do about it?

A. Executors often undervalue estates, there are a number of reasons for this, the principle reasons being minimisation of probate costs and hiding assets from potential claims.

At Gerard Malouf & Partners we do not trust in the probate documents and run various searches upon the estate’s assets and name. We also undertake a scattergun approach to bank accounts. We are able to press the estate for disclosure of various documents and essentially verify the truth and accuracy of the probate documents alleviating any concerns you may have.

At Gerard Malouf & Partners we also have at our disposal various investigators that can ensure that estate assets are tracked and found and brought before the Court for inclusion in the estate. We have the knowledge, expertise and financial backing to challenge all executors and the truth of their assertions.

 

Q15.      How do I make sure that I get what I am entitled to?

A. In many circumstances a client will come to us having already received a benefit under the estate of a deceased person. This person may have been their parent, friend, colleague or any other person within society however the other beneficiaries, and in particular the executors, may have difficulty with the deceased having provided for such a person. 

In these circumstances we are able to register our involvement with the estate, as beneficiaries are entitled to be separately legally represented, so as to ensure that the executors act in a proper and legal manner when managing the estate. At Gerard Malouf & Partners we are able to challenge an executor on an incorrect distribution of the estate and, should the need arise, bring an application before the Supreme Court for breach of executor’s duties.

A beneficiary does not need to sit idly by and allow an executor to dictate to them how and when an estate is to be distributed. An executor has an overreaching obligation to administer the estate legally and in accordance with the Will. At Gerard Malouf & Partners we can challenge such executors should they go outside these legal obligations.

 

Q16.      When do I have to make a claim?

A. Within the Australian legislative frame work each state or territory has a different period of which a family provision claim must be brought. Claims must be brought within these periods and, if a claim is brought outside such a period, an explanation as to delay must be made and a party must seek the authority of the Court to proceed with such a claim. 

The reasons to proceed with a claim out of time vary from state to state and the ability to do so vary from state to state and as such your best option is to contact Gerard Malouf & Partners to identify this.

By way of guidance please see the below table so as to identify the relevant limitation periods that apply to each state.

NSW

12 months post death

QLD

9 months post death (notice of intention to claim must be given within 6 months of death)

ACT

6 months after the date of the grant of probate of the will or of letters of administration

VIC

6 months after the date of the grant of probate of the will or of letters of administration

WA

Within 6 months from the date that the administrator becomes entitled to administer the estate

TAS

Within 3 months from the date of grant of probate or letters of administration

NT

Within 12 months from the date on which administration of the deceased’s estate has been granted

SA

6 months from the date of grant of probate or letters of administration(Application must be made within 3 months of putting the administrator on notice)

Q17.      My parent was acting strange at the time they made their Will, how do I make sure the Will is valid?

A. This is quite a difficult question, as the validity of a Will various from case to case and person to person as what may be strange for one person may not be strange for another. In these circumstances it is important, if able, to obtain medical certificates or any records available to you so that Gerard Malouf & Partners can properly analyse the potential to challenge the creation of the Will.

In many instances a potential claimant is unable to obtain medical records and so forth and in these circumstances it is very important to obtain the details of any friends or relatives who are willing to give statements about the person’s actions and mental capacity at the time of writing the Will.

In these cases information is the key and the more information available as to the actions of the deceased the better a claim can be brought.

 

Q18.      Who has priority, a widow or a child from a former marriage?

A. This is a question that often comes up in the case law as in today’s society such mixed families are common. Due to the common nature of these events disputes often arise between children of a former marriage and a present spouse in particular if that spouse has children to the deceased.

The question a Court must ask itself is who takes priority the widow or the former children. In coming to a decision the Court will rely heavily upon societies perceptions of a marriage and the union between two people however the Court is also very conscious of a testator’s responsibility towards their children, in particular if those children are in need. What the Court will now engage in is an analysis of the relationship between the deceased and his/her widow, and the deceased and his/her children. The Court will assess the length of the relationship, the quality of the relationship and in particular if either the children or the spouse/widow created a rift between the various applicants and the deceased.

The Court will then engage an analysis of needs and identify the contribution the widow has made to the quality of life of the deceased and the assets as a whole.

It is generally accepted that widow will be looked after especially if that relationship is a long relationship however that does not mean that the Court will completely disregard the rights or the needs of the children. The Court will analyse the needs of the widow with reference to their age and ability to enter into an aged facility or potential care options. The Court will then analyse those needs in light of the needs of the claimants and quite often will ensure that a portion is provided to those children.

In summary there is no clear rule as to who takes priority a widow or a child from a former marriage however if a child or a widow is omitted from the Will of the deceased there is strong possibility that such a claim will be successful.

 

Q19.      Who has priority a child from a former marriage or a child from a present marriage?

A. The Laws of Australia, irrelevant of which state or territory you are in, does not differentiate between children of a former or a present marriage. In the eyes of the judicial system a child of a deceased is a child of the deceased and that person has a right to make a claim in the deceased estate.

In circumstances such as these the Court will analyse the needs of the child, the relationship between the deceased and the particular child and balance that relationship with the needs of the other children and applicants.

 

Q20.    I come from a traditional family and everything was left to the eldest child is there anything that can be done?

A. The Laws of Australia, irrelevant of which state or territory you are in, do not differentiate between an eldest children, middle child or youngest child. In the eyes of the judicial system a child is a child of a deceased and that person has a right to make a claim in the deceased estate. The laws and traditions of other countries will be considered however the laws of Australia are paramount.

In circumstances such as these the Court will analyse the needs of the child, the relationship between the deceased and the particular child and balance that relationship with the needs of the other children and applicants.

 

Q21.    I have been left out of the Will and I do not have any needs, but my siblings are also financially comfortable, is there anything that can be done?

A. Cases such as this regularly occur in today’s Australian populous, particular due to increases in wages and property prices. In essence if need cannot be established, one does not have a claim, however in circumstances where all parties are similar in financial position the Law is grey.

In these circumstances the Courts will look at the estate assets and identify whether the size of the estate warrants a division between the siblings regardless of need. In circumstances such as these the Court will analyse wants versus needs and where the estate is larger and all the beneficiaries are financially independent a Court will turn to a cheese and jam approach of the estate. The Court may determine that items such as holidays, cars or other luxury and consumer goods are a relative need due to the financial positions of the persons.

In summary where all beneficiaries or potential claimants are of similar financial circumstances the Court looks at the term “need” in a different light and it may be possible for a claim to be brought regardless of financial position.

 

Q22.    There is very little in the estate and we are all poor, is there any point fight the estate so only the Lawyers win?

A. This is a question that goes to the heart of Gerard Malouf & Partners. Mr Malouf founded the firm on ideals grounded in fighting the disenfranchised person and the “battler”. Mr Malouf has founded his reputation on ensuring that the legal fees charged from Gerard Malouf & Partners are commensurate to the matter and we guarantee that we will reduce our fees to facilitate the resolution of the claim.

In cases where the estate is small a person still has rights. We are willing to take reduced fees to ensure that those rights are pursued to the full ambit of the Law.

The fees rendered by Gerard Malouf & Partners will not stand in the way of a settlement rather our attitude towards early resolution and negotiation at every opportunity will ensure that minimal estate costs are expended and maximum benefit to our clients.

 

Q23.    My parents and I had a fight as they did not like my partner. I have been left out of the Will, is there anything I can do?

A. Each state or territory within Australia deals with this issue in a different way, however the comment ground between the states and territories is the fault for the dissolution in relationship and the actions of the relevant parties.

In circumstances where the fault of the dissolution of the relationship between child and parent relates to the parent a Court will be less inclined to disentitle or write a person out of the Will. Generally in these circumstances it would be more likely than not that an applicant will be successful in the pursuit of their rights as to the estate of their parent.

In circumstances where an applicant is responsible for the dissolution of the relationship between the parties the Court will look at the reason for such a dissolution and the basis of doing so. The Court will look at the actions of the applicant and if those actions were abusive, in particular if those actions caused the deceased person to also cease the relationship with grandchildren. In these circumstances the Court may be inclined to reduce an entitlement however each case is analysed on its own facts and scenarios.

It is difficult to say whether one particular fact or scenario will cause the Court to make an award, or not to make an award, in favour of an applicant. Those reasons should be thoroughly discussed with the solicitors at Gerard Malouf & Partners who are able to quickly and effectively analyse the relationship between yourself and the deceased so as to identify if those reasons were warranted.

 

Q24.   My parent and I had a fight as I was abused as a child. I have been left out of the Will, is there anything that I can do?

A. Each state or territory within Australia deals with this issue in a different way, however the comment ground between the states and territories is the fault for the dissolution in relationship and the actions of the relevant parties.

In circumstances where the fault of the dissolution of the relationship between child and parent relates to the parent a Court will be less inclined to disentitle or write a person out of the Will. Generally in these circumstances it would be more likely than not that an applicant will be successful in the pursuit of their rights as to the estate of their parent.

In circumstances where an applicant is responsible for the dissolution of the relationship between the parties the Court will look at the reason for such a dissolution and the basis of doing so. The Court will look at the actions of the applicant and if those actions were abusive, in particular if those actions caused the deceased person to also cease the relationship with grandchildren. In these circumstances the Court may be inclined to reduce an entitlement however each case is analysed on its own facts and scenarios.

It is difficult to say whether one particular fact or scenario will cause the Court to make an award, or not to make an award, in favour of an applicant. Those reasons should be thoroughly discussed with the solicitors at Gerard Malouf & Partners who are able to quickly and effectively analyse the relationship between yourself and the deceased so as to identify if those reasons were warranted.

 

Q25.    My parent and I have not spoken for years. I have been left out of Will, is there anything I can do?

A. Each state or territory within Australia deals with this issue in a different way, however the comment ground between the states and territories is the fault for the dissolution in relationship and the actions of the relevant parties.

In circumstances where the fault of the dissolution of the relationship between child and parent relates to the parent a Court will be less inclined to disentitle or write a person out of the Will. Generally in these circumstances it would be more likely than not that an applicant will be successful in the pursuit of their rights as to the estate of their parent.

In circumstances where an applicant is responsible for the dissolution of the relationship between the parties the Court will look at the reason for such a dissolution and the basis of doing so. The Court will look at the actions of the applicant and if those actions were abusive, in particular if those actions caused the deceased person to also cease the relationship with grandchildren. In these circumstances the Court may be inclined to reduce an entitlement however each case is analysed on its own facts and scenarios.

It is difficult to say whether one particular fact or scenario will cause the Court to make an award, or not to make an award, in favour of an applicant. Those reasons should be thoroughly discussed with the solicitors at Gerard Malouf & Partners who are able to quickly and effectively analyse the relationship between yourself and the deceased so as to identify if those reasons were warranted.

 

Q26.    My parent and I did not argue however we have not spoken for some time. I have been left out of the Will, is there anything I can do?

A. Each state or territory within Australia deals with this issue in a different way, however the comment ground between the states and territories is the fault for the dissolution in relationship and the actions of the relevant parties.

In circumstances where the fault of the dissolution of the relationship between child and parent relates to the parent a Court will be less inclined to disentitle or write a person out of the Will. Generally in these circumstances it would be more likely than not that an applicant will be successful in the pursuit of their rights as to the estate of their parent.

In circumstances where an applicant is responsible for the dissolution of the relationship between the parties the Court will look at the reason for such a dissolution and the basis of doing so. The Court will look at the actions of the applicant and if those actions were abusive, in particular if those actions caused the deceased person to also cease the relationship with grandchildren. In these circumstances the Court may be inclined to reduce an entitlement however each case is analysed on its own facts and scenarios.

It is difficult to say whether one particular fact or scenario will cause the Court to make an award, or not to make an award, in favour of an applicant. Those reasons should be thoroughly discussed with the solicitors at Gerard Malouf & Partners who are able to quickly and effectively analyse the relationship between yourself and the deceased so as to identify if those reasons were warranted.

 

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