CHALLENGING A WILL or ESTATE

When someone has passed away years of tension and emotions between the deceased and loved ones often comes to a ‘head’ resulting in a dispute.  Whether it is one family member getting more than another or being left out entirely or concerns over the deceased being unduly influenced to make late changes to their Will a claim may be the only way to resolve it.  While the greed of some beneficiaries can inspire the others to take action often it can be the seeming injustice of the bequests that motivate some to take legal action.  The legislation that deals with such matters is the Succession Act and it sets out who can make a claim against an Estate, which can include many people.  If you were a spouse or defacto spouse, a former spouse, a child, a grandchild or a former member of the household and dependant on the deceased you would be regarded as being an eligible person to make a claim.  Other claimants may be considered dependent on the particular circumstances.  It would need to be shown that the deceased made no or inadequate provision for you.  Despite talk about testamentary freedom, that is the right for a person to decide who their Estate should go too, essentially the law regards a deceased person to still have obligations to look after their family and certain others, even after they have passed away.  It is expected this is done in their Will and the absence of such consideration could see an entitlement to make a claim.  A factor in claims of this nature is described as considering the claimants ‘needs’ so if you have been well provided for in the past you may find it harder to convince the court of your claim.  Circumstances such as the size of the Estate, your relationship to the deceased and even your character and conduct around the time of the death are taken into account.  Claims must be made within 12 months of the date of death.  Mediation of claims prior to going to a full court hearing is now compulsory and many settle at this time to avoid the vagaries of a Court decision.   The chances of settling this kind of claim before going to Court is often good as Executors are inclined to settle disputes rather than run up large court costs as often the Estate pays the costs anyway.  If you feel you have been wrongly done by give us a call, we have experience with all types of claims.