Expert Estate Lawyers

Contesting or challenging the Will of someone close to you who has passed away is a difficult and emotional process. The first thing to determine is whether you are entitled to make a claim against the estate and your prospects of success. An Estate Lawyer can help you determine both of these things, and can lodge a Family Provision Claim on your behalf. They will guide you throughout the process, and provide advice.

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 we 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.

Hentys Lawyers offers an obligation free appraisal where we will speak with you to gain a deeper understanding of your circumstances. At this appraisal, we will advise you as to whether your claim has merit, and if it is worthwhile for you to pursue the matter.

With 40 years experience in the field, we appreciate how difficult it can be to discuss such a sensitive matter, and can ensure our lawyers will act with professionalism, sensitivity and discretion at all times.

The Executor of a will can be removed by order of the Court if they are not carrying out their duties properly, if they have a conflict of interest, or if they are acting an a manner that is not in the best interest of the deceased. If you believe the Executor of a Will that you have an interest in is not acting accordingly, you can make an application to have them removed. An Estate Lawyer can help you with this process.

In most cases, the legal costs associated with making a Family Provision claim will be paid from the Estate.

In most, Estate Dispute cases are resolved outside of court. In Victoria Estate Dispute cases are subject to a court appointed mediation, where all parties meet to come to a satisfactory resolution. In our experience, more the vast majority of cases are settled in this mediation.

If your claim is not settled at mediation, your Estate Lawyer will represent you in Court.

In Victoria, there are strict time limits for lodging a Family Provision Claim.  As such, it is important to speak to an Estate Lawyer as soon as possible.

In Victoria you have strictly 6 months from the date that a grant of Probate is made to contest a will. Although in some exceptional circumstances an extension of time will be granted.

If you think that the deceased was placed under undue pressure or influence when writing their Will, Hentys Estate Lawyers may be able to assist you in contesting the Will based on undue influence. Our Lawyers will help you identify whether you have a claim and assist in obtaining evidence before taking the next steps in your Will Dispute case.

Our Estate Lawyers can help you challenge a Will based on incapacity if you think that the deceased was not in sound mind at the time of writing it. The court will conduct a number of tests to determine whether the deceased had ‘testamentary capacity’ at the time that the Will was made and they may need to review the Will maker’s medical records to assist in the process.

Our Estate Lawyers can help you if you were financially dependent on someone prior to their death and have found that you are not included in their Will.

In many cases, the deceased person may have superannuation death benefits that can be payable to relatives or anyone who was financially dependent on them. If you are in this circumstance, our Estate Lawyers can assist you in making a claim in respect of the deceased’s superannuation death benefits.

You may also consider lodging a family provision claim to protect your interests. Our Estate Lawyers can advise you on the best option moving forward.

The Court will take into consideration the relationship between a parent and child when considering a claim against an Estate. However, this is only one factor the Court looks at. When determining the amount to be awarded to someone who is challenging a Will or claiming against an Estate, the Court will also consider financial need. For example, if the child claiming against the Estate is financially worse off than their siblings who were close to the deceased, they may have a stronger financial claim to the Estate.

Even if Probate has been granted by the Court, you can still give the Executor notice of your intention to contest the Will. Your Estate Lawyer will advise you on the best way to move forward with your claim under these circumstances. The usual time limits will apply.

Your Estate Lawyer can advise you of the types of things that may be included in the deceased’s estate. The Executor should consider all assets and liabilities (including tax debts) that were in the deceased’s name at the time of their death so that an accurate value of the Estate can be established.

Some of the things that will form part of the estate include bank accounts, shares, vehicles, memorabilia and other personal items as well as properties owned by the deceased. If the property is jointly owned, different rules may apply.

As the de facto partner of the deceased, you may be entitled to a share of the deceased’s Estate. Your Estate Lawyer will help you determine whether you have a claim based on the following:

• the nature and extent of your common residence
• the length of your relationship
• whether or not a sexual relationship existed at some stage in the relationship;
• whether or not you were financially dependent or interdependent on the deceased
• whether you jointly owned any property
• the degree of your mutual commitment to sharing a life together
• whether you both cared for any children together
• whether you shared household tasks and chores
• whether you were known to your friends and family as a couple

In most cases, a Will does not cover superannuation, which can have serious consequences for those left behind.

It’s important that your Estate Lawyer informs you how superannuation is dealt with in a will contest case. Even if the sum in the superannuation fund is low, it is likely that the account will include a life insurance policy, which in some cases may be worth up to hundreds of thousands of dollars. Superannuation death benefits generally consist of contributions to the superannuation fund, as well as any life insurance held in the member’s account. If superannuation is not properly dealt with in the Will, it may end up in the hands of unintended recipients, as several well-documented cases have demonstrated.

Whether or not you can challenge a Will of a deceased Estate usually depends on how you are related to the deceased. Your Estate Lawyer will be able to give you more accurate advice in this area, but in general terms, you may be able to contest a Will if you are the deceased’s spouse, de facto, child (including step-child) or dependant.