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Overview

Will Disputes In Australia

Arguably, there are few legal matters more sensitive than those surrounding the last will and testament of a family member who has recently passed away. The loss will weigh heavily on the hearts and minds of everyone affected by it, including those who may have had a complicated or even estranged relationship with the decedent. 

No one will be at their emotional best. Interpersonal conflicts are always a risk, especially between immediate and extended family members. But will disputes can be unavoidable in certain circumstances and will dispute lawyers help to manage your claim. For example, in cases where there is a legitimate reason to question the document due to questions of the decedent’s actual intent or mental competence — or a reasonable suspicion that untoward influence affected the testator — it is necessary to pose those questions in court.

If you are legally entitled to start a will dispute by formally contesting the written wishes of the deceased relative, it is imperative that you do so in as prompt a fashion as possible. Not only will your challenge to such a document appear more legitimate to a magistrate if it is filed as soon as possible, but every state and territory imposes a statute of limitations after which such family provision claims cannot legally be made. A Will Dispute Lawyer can advise you about time restrictions for your case.

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Why would you dispute a will?

The specific context in which a family provision claim disputing a will is filed varies wildly on a case-by-case basis. Additionally, state laws can differ regarding these matters, such as who can contest a will: Parents, children, stepchildren, grandchildren, spouses (including de facto and life partners), ex-spouses and those “wholly or partly dependent” on the deceased are able to dispute wills in most states, but not all; for example, the Australian Capital Territory’s Family Provision Act does not include ex-spouses.

However, there are several broad sets of circumstances in which you are permitted to contest a will under Austrian law. These include:

  • A lack of clarity: Wills may not always explain in unambiguous terms how the various assets of a testator’s estate are to be distributed between those named as beneficiaries within the document. This can be even more complex when the decedent has willed assets not only to spouses, partners and family members but also organisations (usually charities or nonprofits). In such cases, you can file a claim for the will to be examined by the court and potentially altered.
 
  • Unfair distribution: All things being equal, the will of a person who has composed and signed off on such a document within the terms dictated by state or territory law must be followed to the letter by the decedent’s legal executor. However, if you were awarded significantly less than your siblings and can reasonably argue that this choice represented a dereliction of the testator’s obligation to you, this is grounds to make a family provision claim.
 
  • Problems with an executor: As discomfiting as it may be to imagine that the executor of an estate would not distribute the assets associated therewith according to the precise instructions of a person’s will, it is by no means unheard of. You can contest a will on these grounds or if you believe the executor erred in another way, such as failing to apply for probate in a timely manner.
 
  • Questions of testamentary capacity: An individual’s last will and testament is, in theory, composed when that person is of sound mind, without being affected by anything detrimental to their mental or neurological well-being. If there is reason to believe the will’s testator was suffering from the symptoms of such a condition when they signed the document (e.g., Alzheimer’s disease, dementia, an acute mental disorder like schizophrenia or the effects of significant substance abuse), you can mount a challenge, but be prepared to proffer a great deal of physical evidence supporting your claim (medical records and so on).
 
  • Suspicion of undue influence: If one or more beneficiaries of a will coerced or otherwise manipulated the testator into a scheme of asset distribution that benefited them and disenfranchised others, that constitutes undue influence and is grounds for a family provision claim.
Process

How do you challenge a will?

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.

Compensation

What award might result from a will dispute?

The outcome of a family provision claim is difficult to predict, and the compensation resulting from succession in this area even more so. It largely depends on the circumstances: In a situation where one family member received significantly more from the will than any other beneficiary, the court might order assets to be redistributed evenly between everyone named in the document.

 Alternatively, if a testator willed their estate to a charity but you, their only child, made a successful argument explaining that the deceased abandoned an obligation to you by doing so, you would most likely work out an agreement to split the assets evenly with the organisation. The precise figures, of course, depend on the final value of the estate.

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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.

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Our guide to will disputes

Download your guide today for free and make sure that you are aware of the facts and information you need to make a will dispute claim.

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Our Difficult Case Policy

At Gerard Malouf & Partners we have introduced a policy that if any case appears to be overly difficult or unlikely to obtain a good result for the client our lawyers must bring it to the attention of the management team via a detailed pro forms explanation early and then our management team will take all steps possible to ensure it is successful and that we obtain the maximum result for the client.

This is unlike other law firms who often run compensation claims in a mechanical way. At Gerard Malouf & Partners, our lawyers handle each claim thoroughly and comprehensively prepare it in every aspect.

This is more tedious, more complex and costlier for our firm in some ways but the best result will be achieved every time for our clients seeking accident injury compensation service. It is our professional obligation to strive not just for some justice but for the maximum achievable. This is our core philosophy and what differentiates us from other law firms.

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Meet the Contesting Wills team

Meet some of the diverse and dynamic compensation lawyers that support our clients with their Will Dispute claims.

David Cossalter
Managing Partner
Richele Nelsen
Senior Associate
Garbis Kolokossian
Partner

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Call us now on 1800 004 878 to book a free appointment with one of our compensation experts, or make an enquiry online now.

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