Welcome to Hentys Estate Dispute Lawyers, Your Will Contesting Experts

When an individual dies, the executor named in the Will files the Deceased’s Will with the court, along with a copy of the death certificate. During probate, the court and executor may perform a number of activities, depending on the directives in the Will and the complexity of the estate.

Victorian statutes provide specific instructions regarding when and how to dispute an estate. An eligible person (an individual who has a personal financial stake involved) may challenge the Will for a number of reasons. For example, an estate may be disputed if the Will doesn’t contain provisions for spouses or children, has unequal division of assets between beneficiaries or due to the contents of earlier Wills. The probate judge may restrict contest actions by individuals who can’t prove a legitimate interest in the estate.

If our lawyers advise that your claim has merit, we will begin the process of disputing the estate. We will start to prepare your evidence and strive to resolve the matter as efficiently as possible.

In the last 5 years, it is the experience of Hentys Lawyers that no Will dispute case has ended up in court, and can assure you that going to court is a last resort when you are disputing an estate.

At Hentys Lawyers, we endeavour to make estate law as simple as possible for our clients. If you have found yourself in the position of being unfairly provided for in a Will, Hentys can help you receive what you are entitled to.

In adherence with Victorian Legislation, if you are planning on disputing an estate, you must file in court within six months of probate being granted or letters of administration being issued.

The validity of a Will may be challenged under the following circumstances:

• The testator (will maker) was not considered to have the full mental capacity to make a Will at the time that it was signed
• The Will is believed to have been made under the influence of others
• A person who the deceased had a responsibility to provide for believes that they haven’t been left a fair share of the estate

Traditionally there is a large amount of difficulty surrounding the determination of how much such a proceeding will cost. It varies greatly depending on each individual circumstance, taking into consideration how willing the executors are to negotiate and whether there are any complicating factors which will affect the estimated cost of your case.

Hentys operates under a simple 4 step process that helps us determine and communicate to you the cost/size of your claim

1. We Review Your Claim – with one phone call being all it takes for us to confirm whether you have a reasonable claim or not
2. We Assess Your Case – we estimate the size of your claim.  In accordance with Victorian Legislation, we will always provide you with a detailed cost agreement which specifies the costs you are likely to incur.
3. We Commence Proceedings – we are with you every step of the way, managing the entire process on your behalf.
4. We Settle Your Case – we apply our knowledge and expertise to reach the settlement you are entitled to and only then will you be required to pay our legal fee.

Executors/Trustees are usually entitled to be indemnified for all costs that have been reasonably incurred. So, once an outcome has been reached the legal costs associated with defending the Will, will come out of the Estate. This is different to most types of litigation where parties may incur significant legal costs for the duration of the case. However, with estate law, the courts do not want to discourage executors/trustees from carrying out their duties.

We say ‘usually’ as the Courts under the Civil Procedure Act 2010 are still given broad powers in relation to costs, so it is important to note that in some circumstances executors/trustees may be required to pay costs.

For example, the executors/trustees would be required to pay-up if the Court determines that he/she has acted contrary to the particular purpose of the case i.e. they have failed to cooperate in an attempt to resolve the dispute in question, or have caused an unnecessary delay in the proceedings. It would be unjust to the other side for extra legal costs to be paid out of the Estate, reducing the amount they are entitled to because of the act of the individual executors/trustees.

This notion was recently set out in the 2014 case of Fielder v Burgess where the judge sated that ‘In my view…it is not obvious to me why a testator’s fault in the making of a will should result in a loss to the successful beneficiary in litigation over the estate’.

Most Wills are challenged on the basis of Testator’s Family Maintenance.  This is when someone the deceased had a responsibility to provide for believes that they haven’t been adequately provided for in the will.

In order to Dispute an Estate on the basis of Family Maintenance, the person who wants to make a claim has to be closely related to the person who died.  The categories of people who can dispute an estate in Victoria include:

• A spouse or domestic partner of the deceased
• A former spouse or partner eligible to apply to court for a property settlement
• A child or stepchild, or someone treated as a child by the will maker
• A parent of the deceased
• A member of the deceased’s household
• A registered carer of the deceased
• A grandchild of the deceased who can show that they were dependent on the will maker

It’s important to note that simply falling into one of these categories does not automatically mean that you will have a successful Estate Dispute claim.  In order to asses the claim, the court will take the following into consideration:

• The Will document(s) as well as evidence about why the Will maker made the Will as they did
• If the deceased had a ‘moral duty’ to provide for the applicant
• If the applicant was fully or partly dependent on the deceased
• Whether ‘adequate provision’ was made for the applicant. If the court decides that this was not the case, they will advise on what provision should be made
• Any physical, mental or intellectual disability of the applicant and other beneficiaries
• The nature of the relationship between the applicant and the deceased
• How changes to the Will might affect the other beneficiaries

In order to Dispute an Estate on the basis of Testator’s Family Maintenance, your claim must be lodged within six months of the grant of probate or letters of administration being made.

Estate Disputes can arise in the event that the Deceased did not make ‘adequate provision’ in their Will for a particular person. Those eligible to make an application for this type of Estate Dispute may include:

• Spouses of the deceased (including de facto spouses and dependent former spouses)
• Children of the deceased (including stepchildren and adopted children);
• Dependents who were wholly or substantially maintained or supported by the deceased (including grandchildren, parents of the deceased, members of the deceased’s household and the parent of the deceased’s surviving children who are under the age of 18).

Not every asset is considered part of a deceased’s Estate. Instead there are ‘Estate assets’ which are covered by a Will and ‘Non-Estate assets’ which are not. Knowing which assets are Estate-or Non-Estate not only helps the will-maker undertake the best estate planning possible, but also the will-disputer determine whether they have an adequate claim.

Is Superannuation an Estate or Non-Estate asset?

Superannuation funds act as separate legal entities and do not automatically form part of the deceased’s Estate. Hence, superannuation is considered a non-estate asset. As a result, superannuation monies are tied to the nominated superfund which has a Trustee who decides on payments.

Binding Nominations

Most superannuation funds allow you to make a binding nomination. This allows you to nominate where your super goes if you pass away. As the name suggests, this is binding, so the super fund must follow your instructions and the Trustee does not have any discretion as to where payment is to go.

Traditionally, people nominate their spouse or children. You can also nominate a combination, each with a different percentage if you wish to do so.

A non-binding nomination has no expiry date and never needs renewing.

Non-Binding Nominations

This is exactly the same as a binding nomination except that your super fund is not forced to follow your instructions, the instructions are simply taken into consideration by the Trustee when they make their distribution.

This is particularly useful if someone has re-partnered and forgotten to remove their ex-partner from their super benefit. If they were listed as a binding nomination, the new partner would be forced to try and dispute the distribution, however if they were just listed as a non-binding nomination, the trustee is only required to take the instruction into account.

A non-binding nomination must be properly documented and renewed every 3 years for it to remain valid.

Without a binding death nomination in place, the superannuation fund Trustee is required to distribute the super death benefit at their discretion. They do this in accordance with a set of trust deed rules and is guided by: Any non-binding nominations made, the number of dependents, the relationship between the member and each of their dependents, the level of dependency between the member and each dependent, and what is outlined in the member’s Will.

Can super ever form part of the Estate?

The only time super can form part of the Estate is if the member chooses to make a binding nomination to a legal representative of the Estate – that is, the Executor of the Estate. In this case, upon death the super fund is bound to pay the super into their Estate which in effect transforms it from a Non-Estate asset to an Estate asset.

However, the important thing to note is that by default, superannuation will always be a Non-Estate asset.

Can the distribution be disputed?

Distributions can be disputed but there is a time limit. Complaints must be made for internal review within 28 days of being notified of the superannuation distribution. If the fund only had a non-binding nomination, you would be required to explain the reasons why you believe the decision made by the superannuation fund was wrong, and provide supporting documents to prove relationship and or dependency on the deceased. Ie, reasons why you need maintenance and support more so than the person(s) the Trustee paid it out to.

In cases where a binding-nomination is present, you are still able to dispute the distribution, but you would be arguing that at that time, the ‘binding’ nomination was not in fact ‘binding’ on the Trustee and therefore the trustee should use their discretion; i.e. the nomination was not executed effectively. It is substantially more difficult to be successful in this kind of dispute.

If still not happy with the decision of the fund, you then may apply to the Superannuation Complaints Tribunal within 28 days.

If the complaint cannot be resolved, the tribunal will consider the relevant evidence of the parties at a review meeting and you may appeal the decision of the tribunal to the Federal Court within 28 days of the decision.

Once the death benefit has been paid, it is very difficult to make any application or claim in respect of the monies. Therefore, if you have concerns in relation to, or wish to make a claim against a deceased’s person’s superannuation, do not hesitate to contact the team at Hentys Lawyers today.