Disputed Wills

Disputed Wills are claims against deceased estates by potential beneficiaries left out of a relative’s will.

A person is able to create their will however they please but that doesn’t mean you can’t exercise your rights and dispute it.

Queensland law allows family members or dependants who suffer hardship because they have been overlooked or inadequately provided for in a will, to bring a lawsuit for estate allocation to them.

Written notice must be given within six (6) months and legal action commenced within nine (9) months of the date of death. To get started, collect relevant information as best you can including a list of estate assets, a list of surviving dependants and particulars of your relationship with the deceased.

Claims against deceased estates can be made from the perspective of:-

  • Executors or administrators managing a deceased estate
  • A child, spouse, dependant or former wife left out of a will
  • A beneficiary wishing to challenge the fairness of a will
  • A child or spouse who wishes to administer the estate of a deceased who died with no will
  • An executor or beneficiary who is concerned about the validity of a will
  • A child, spouse or dependant who is suspicious of the influence of another person over the terms of the will

More on who can contest a will.

Dealing with the shock of your loss can be helped by having a clear understanding of the legal position relating to your loved one’s estate.

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Carter Capner Law can provide you with expert advice about how the deceased’s estate should be collected and distributed, and those who are entitled to expect a share.
All executors, dependants, family members and beneficiaries should be aware of the types of challenges that can be mounted against a will.

Family Provision

A spouse, child or dependant, for whom insufficient provision has been made his or her proper maintenance and support, can contend for a Family Provision from the estate for their benefit under the Succession Act.

The contest can be resolved by agreement but if not, is determined by a court. What needs to be considered are the relative financial positions of the parties; relationships between the deceased and all potential beneficiaries; the size of the estate; any special needs; and the fairness of reducing benefits to specified beneficiaries for the benefit of someone who has been intentionally omitted.

Time Limits: An executor may distribute an estate if after six months, no notice has been received by any intending beneficiary. Persons considering a Family Provision application should therefore give prompt notice through their lawyer to the executor of their intentions.

Suspicious Wills – Undue Influence

Wills can be challenged if they are made under the influence of an overbearing relative, friend or advisor. This usually occurs when there is an imbalance of power in the relationship, where the weaker party agrees to the more dominant party’s desires contrary to their wishes. A full examination of all the circumstances under which the will or codicil was made is required.

Incapacity

Creating a will is important however as people get older they may lose capacity to make one. To have capacity the testator needs to know what a will is, what their property is and the people that have a reasonable claim to the estate. Someone with, for example, dementia, can only make a valid will (or vary one) during a medically certified “lucid” period or by application to the Supreme Court. Capacity can be a source of dispute in estate administration.

Will drafting

Sometimes beneficiaries do not receive what they were expecting or what the deceased intended because of the way a will was drafted. Will drafting can be a source of dispute in estate administration.

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A to Z of ESTATE ADMINISTRATION & DISPUTE RESOLUTION

Ademption – The transfer or sale prior to death of an asset given by will to a beneficiary. Can be the source of a dispute among beneficiaries.

Alteration – Inked-in alterations to a will or codicil raise issues of “validity” and undue influence that can be a source of dispute.

Bequest – A gift in a will. Sometimes subject to dispute if insufficiently described.

Child – Any child, stepchild or adopted child of the deceased including child unborn at their death, provided the child is born alive and remains alive for a period of 30 days.

Capacity – A testator must have legal capacity to make a valid will. Someone with, for example, dementia, can only make a valid will (or vary one) during a medically certified “lucid” period or by application to the Supreme Court. Capacity can be a source of dispute in estate administration.

Dependent – A person – for Family Provision purposes – who is wholly or substantially supported by the deceased person at the time of their death including a parent, a parent of a surviving child under 18 and anyone under the age of 18 years.

Debts – Most personal debts survive your death and can be recovered from the estate by the person to whom the debt is owed. These are paid (along with estate and funeral expenses) before the estate is distributed to beneficiaries.

De facto – Refers to a couple living together on a “genuine domestic basis”. The relationship is established by circumstances including residence, interdependence, joint property ownership, shared children and household tasks. For Family Provision and Intestacy rules, the person must have lived together with the deceased as a couple for a continuous period of at least 2 years up to the deceased’s death. A shared residence does not of itself prove a de facto relationship.

Divorce – Gifts to former spouses in wills made prior to a divorce are void but the will remains valid.

Execution – The formal signing of a will which is required to be in the presence of two independent witnesses, both present at the same place at the same time. Incorrect execution can be a source of dispute.

Executor – The person or persons appointed to efficiently manage estate assets, make payments on behalf of infant beneficiaries pending distribution, sell the assets and make distributions to beneficiaries.

Fess to Executor – An executor may charge an estate “executor’s commission”. Depends on the extent of the executor’s “pains and troubles” but can be as high as 6% on income derived and 5% on capital realised. Cannot be charged without an order of the court or unanimous agreement of beneficiaries

Guardian – The person of whom you express the desire to take day-to-day care of infant children orphaned by your death. Only comes into effect after the death of both parents.

Hotchpot – The taking into account of a pre-death gift to a beneficiary and setting off the value of the gift against that beneficiary’s entitlement.

Issue – Same as “child”.

Intestacy – The absence of a valid disposition to potential beneficiaries. If a deceased dies without a will, the administrator must distribute assets (mostly to spouse and children) according to specific rules. Where there are no surviving relatives, all funds go to the state.

Jointly Owned – Property “in joint names” (usually the husband and wife) for example, bank accounts or a family home, do not become part of the estate but rather, pass automatically to the surviving joint owner.

Kin – Next of Kin are the relatives amongst whom an intestate estate is distributed if there is no surviving spouse or child. They include siblings, nieces & nephews in the first-tier; grandparents in the second tier; and uncles, aunts & cousins in the third tier.

Letters of Administration – A “grant” from the court authorising a relative or creditor of the deceased who has died without a will, to administer their estate.

Life Interest – The right to use an asset, e.g. a home, or to receive income from the asset during a beneficiary’s lifetime after which, it reverts to the estate for distribution to other beneficiaries.

Life Insurance – The proceeds of life insurance become part of the estate requiring distribution to beneficiaries.

Marriage. A will is automatically revoked by a legal marriage, unless the will was made expressly “in contemplation” of that marriage.

Mutual wills. Wills made as a result of an agreement, eg between a couple, to provide corresponding benefits in each of their wills. Such arrangements or can be the subject of an estate dispute if for example one of the pair changes their will after the death of their partner.

Newsagent – DIY will kits from a newsagency or elsewhere are often incorrectly completed or incorrectly executed. They are often the subject of estate disputes.

Outgoings – Sometimes the source of dispute in relation to a bequest or life interest, if the will makes no provision as to whether they should be borne by the estate and for what period.

Per Stirpes – A term to describe how property should be distributed when a beneficiary (who has children) dies before the testator to provide for the deceased beneficiary’s share being paid to his or her children.

Probate – The court’s official recognition of a will and a person’s authority to deal with the estate. Except in the case of estates involving only small bank balances, Probate must be obtained before an executor can take control of the estate’s assets.

Queensland Supreme Court – The court that exercise jurisdiction over wills, trusts, estates and infant beneficiaries. Claims of less than $750k can often be resolved in the District Court.

Renunciation – The act of a person declining their appointment as executor under a will.

Revocation – The formal cancellation of an earlier will. The making of a new will usually has that effect automatically.

Spouse – includes husband, wife, de facto partner and a former husband or wife, if they are receiving, or entitled to receive, maintenance from the deceased and have not remarried. The life partner (married, de facto, heterosexual or same sex) to whom a simple gifts the whole of your estate provided they survive you by 30 days.

Survivorship – Where 2 or more persons die in the same calamity and it is unknown which of them died first, the deaths are “presumed to have occurred in order of seniority” with the younger surviving the elder “for a period of 1 day”.

Superannuation – Most policies contain death benefits. If the subject of a “binding nomination” the benefits are (subject to discretion of the fund’s trustee) paid in accordance with the directions contained in the nomination.

Testator – The person who makes a will.

Undue Influence – Coercive-like conduct or manipulation exercised upon a testator to provide benefits under a will that can be relied on by another person to challenge its validity.

Vehicle – A chattel commonly within an estate that may have been “adeemed”.

Will – Includes a codicil which is a document required to be executed in the same formal manner as a will, that amends a prior will.

Examination – The process taken by the court’s Registrar prior to the grant of Probate.

Executor’s Year – The period of 12 months allowed to an executor of a deceased estate to pay, free of interest, any legacy left by the will.

Zone – Wills can be expressed to relate to property only within one location (eg. Australia), which relieves the executor from taking steps in relation to assets located elsewhere (in respect of which the testator is presumed to have made other arrangements).

 

Call Peter Carter on 1300 529 529 or make an online enquiry so steps can be taken promptly to protect your interests

 

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