Case Overview
- Our client was a lifelong friend of the deceased, providing ongoing care and support.
- He was assured by the deceased that he would be provided for out of his will. It was later found that the deceased had no will.
- GMP Contesting Wills Lawyers filed a case of promissory estoppel and ensured provision was made for our client on the basis of the longstanding verbal promise from the deceased.
Our client was a lifelong friend of the deceased who provided him with ongoing care and support, including driving him to appointments, providing him with companionship, buying groceries and cleaning his home. The deceased made repeated promises that he would be provided for in his will.
When the deceased eventually passed away, our client was shocked to discover that there was in fact no will and he would not be reimbursed by the deceased’s estate. Our client came to Gerard Malouf and Partners unsure of his rights as he was not family and only had a longstanding verbal promise from the deceased. The experienced Contesting Wills team quickly recognized that this may be a case of promissory estoppel.
“Promissory estoppel refers to a situation where two parties have an ongoing relationship, during which one party makes a clear promise to another. The other party relies on this promise and then the existence of the promise is denied, resulting in this party suffering some form of detriment.”
David Cossalter
Our Approach
In this case, our client had an ongoing friendship where he provided care for the deceased. During the course of their friendship, the deceased promised that if he continued to provide care to the deceased without being reimbursed for his time and efforts, he would be provided for out of his will when he passed away. On this basis, our client continued to provide high level care on a gratuitous basis.
At Gerard Malouf and Partners, we have been proven to go the extra mile in order to achieve a settlement for our clients. We believe it is possible to achieve a result even if you are not a family member and there is no Will. It is difficult but in limited circumstances, we have been able to establish that our clients meet the following criteria:
- There is a long-term relationship between yourself and the deceased;
- There was an ongoing reliance on your care and support from the deceased;
- It was the wishes of the deceased for you to receive a benefit from the estate, forming a verbal contract.
If you find yourself in a situation where there is no Will and you are not a family member of the deceased, but you have provided ongoing care and support on the promise of provision in a will, please call the team at Gerard Malouf & Partners on 1800 058 921 for a no obligation free appointment so we can investigate your rights.
The Result
Having brought evidence that it was in fact the deceased’s wishes that our client be provided for, Gerard Malouf and Partners Contesting Wills solicitors were successful in bringing a claim to the deceased Estate to ensure provision was made for our client on the basis of the longstanding verbal promise from the deceased.
Frequently Asked Qeustions
More Information
How long after a death can a will be contested?
Contesting a will in Australia is a process which must typically be started within a specific time frame. If you try to contest a will after that time frame, you have to have an exception, such as not knowing about the death of the deceased person until after the deadline passed.
If you were estranged from the deceased, provision might have been withheld unlawfully in their estate plan and will, giving you grounds to contest. You should lodge a claim as soon as possible to gain your rightful share of the inheritance.
Waiting to contest a will can be problematic, because once the will is granted probate and the executor can disburse the assets included in the estate, it can be impossible to recoup them from the beneficiaries to whom they were assigned.
How long do you have? That’s one of the most important questions when contesting a will. The answer may vary depending on which Australian state or territory the will maker lived in.
The first step in disputing a will should be a consultation with solicitors from a law firm that includes family provision claims among its areas of expertise. This conversation will involve a frank analysis of your dispute and its chance of success.
If seasoned lawyers consider your matter valid, then you can declare your intent to claim. This should take place not long after the death or grant of probate (New South Wales permits filings up to 12 months post-death, but the limit is 6 months in). You must clearly argue that you have a pertinent connection to the decedent entitling you to compensation you didn’t initially receive, and explain the “moral obligation” to you this individual should have met.
Successful arguments of these facts will earn you a day in court. Depending on the situation, you may be more likely to resolve this in mediation than before a magistrate; it all depends on how strongly the defendants oppose your claim. You can receive financial compensation in either context if your case is resolved in your favour.
Do you need a lawyer to dispute a will?
You are entitled to represent yourself (and yourself alone) in all Australian legal matters, criminal or civil. But you cannot represent anyone else; e.g., without a lawyer, you wouldn’t be able to mount a challenge alongside others if all of you were disenfranchised by one particular beneficiary.
Moreover, unless you have significant experience in family law, doing so is a huge mistake. Contesting a will is an extremely complex undertaking, involving intense emotions and high tension, and while an experienced lawyer can manage these matters effectively and objectively, you almost certainly cannot.
Will Dispute Lawyers will also be invaluable in cases challenging the actions of an executor, which can go as high as the Supreme Court.
