Wills and Estates - Wills and Estates Litigation

Contact: Annette Templeton, Gordon Ainger

Richmond & Bennison have experienced litigation lawyers to assist you in the event:-

  • You are an individual and believe that adequate provision has not been made for you under a Will
  • You are an individual and wish to challenge the validity of a Will
  • You are an Executor of a Will and seek assistances and/or representation in the event a Part IV Application is made (Testator's Family Maintenance Claim) against the Estate of the Deceased.
  • You are an Executor of a Will and wish to seek assistance and/or representation in the event the Will of the Deceased is challenged for its validity.

When can a Will be contested or challenged?

A Will can be contested or challenged in a number of circumstances including:-

  • If the Will is believed to be incorrectly executed or tampered with,
  • If it is believed that undue pressure was used on the Testator/Will-maker
  • If it is believed that the Deceased was incapable of making their Will at the time of execution due to illness or incapacity,
  • If inadequate provision was made for a dependant of the Deceased who had an obligation to make adequate provision for.
    • Dependants of the Deceased include Spouse and Children and any other individual that is found to be dependant on the Deceased.
  • If the Will does not reflect the intentions of the Deceased
  • If the Will is incorrectly administered.

Time Limits for inadequate provision made for Family Members

Where family members have not been adequately provided for in a Will an application must be made within 6 months of the Grant of Probate or from when Letters of Administration are granted. People who can challenge your Will include de facto spouses, same sex partners, children and may include step children.

Adequate provision for family members

Generally, a Court will be reluctant to interfere with the wishes of the Deceased unless there is clear evidence indicating that it would be unfair and unreasonable if they did not do so.

A Court has power to order that financial provisions be made out of the Estate of a Deceased person for the "proper maintenance and support" to a person "for whom he or she had a responsibility to make provision" under Section 91 of the Administration & Probate Act ("the Act"). It is generally accepted by the Courts that the Testator (Will-maker) has a moral duty, in turn giving rise to a legal "responsibility" to consider and make provision in their Will for their Dependants including, surviving Spouse and Children.

It is important to bear in mind from the outset that the Court has no power to alter a Will so that it operates fairly, or in a way which seems to the Judge, to be fairer in the circumstances.

When determining if you have adequately provided for a person in a Will a Court must look at a number of issues, pursuant to Section 91 of the Act. The issues that will be considered include the following:

  • The relationship between the Deceased and the applicant;
  • The obligations or responsibilities of the Deceased to the applicant, or other applicants and the beneficiaries of the Estate;
  • the size and nature of the Estate of the Deceased;
  • the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the Estate at the time of the hearing and for the foreseeable future;
  • any physical, mental or intellectual disability of any applicant or any beneficiary of the Estate;
  • the age of the applicant;
  • any contribution (not for adequate consideration) of the applicant to building up the Estate or to the welfare of the Deceased or the family of the Deceased;
  • any benefits previously given by the Deceased person to any applicant or to any beneficiary;
  • whether the applicant was being maintained by the Deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the Deceased had assumed that responsibility;
  • the liability of any other person to maintain the applicant;
  • the character and conduct of the applicant or any other person, and;
  • any other matter the Court considers relevant.

For more information please contact our lawyers below.

Contact

Annette Templeton
Lawyer
Phone: (03) 9580 8311
Email: atempleton@richbenn.com.au 

Gordon Ainger
Senior Family Lawyer
Accredited Specialist in Family Law
Phone: (03) 9670 0488
Email:gainger@richbenn.com.au