Hentys Inheritance Lawyers Melbourne

An ‘inheritance’ refers to any assets of the deceased’s’ estate that a beneficiary of a will receives. Individuals who believe that they have been wrongly left out of the testator’s will or inadequately provided for have the opportunity to contest or challenge the will. In these cases, they may decide to get assistance from an inheritance lawyer who will help them in understanding their rights and the merit of their case.

Once having engaged an inheritance lawyer’s professional assistance, you will:

• Receive accurate and complete advice and guidance.
• Have any queries addressed by a specialist using language that is easy to comprehend.
• Be informed of your different options during the entire process.

In inheritance dispute cases, the legislation that must be conformed to varies depending on the specific Australian State or Territory a claim is being made in. Although there are similarities in law across the country, the circumstances that can be satisfied for an individual to be eligible to contest a will in Victoria are as follows:

• You had a dependency on the deceased individuals’ support.
• Adequate provision of the estate was not given and, thus, you were not provided with proper maintenance and support.
• Your relationship with the deceased did not begin until after they had already completed their will, which had not been updated.
• The partner or children from another marriage or de facto relationship were not adequately provided for.
• You are of the belief that the deceased’s will was unfair.
•  It can be proven that the deceased was not of sound mind when they made their will.
• It can be proven that one or more of the beneficiaries took advantage of the will maker, allowing for you to claim undue influence.
• The testators’ will is ambiguous or unclear.

If you feel you have not received proper maintenance and support, you can seek adequate provision of the estate by lodging a family provision claim. This involves contesting the will of the deceased with the intent of achieving a fairer distribution of their estate. If you wish to make a family provision claim this must be made in either the Supreme or County Courts, and you need to satisfy the following requirements:

• You are an eligible person by law.
• The deceased has a moral duty to provide you with proper maintenance and support.
• The distribution of the deceased individuals’ estate does not give you adequate provision.

There are a variety of circumstances under which an individual in Victoria can be eligible to contest a will. The legislative reforms, which outline these requirements, are listed in Section 91 of the Admission and Probate Act 1958 (Vic).

As of January first 2015, to be recognised as an eligible person in Victoria an individual must be one of the following:

1. The spouse or domestic partner of the testator at the time of their passing.
2. The biological child or stepchild of the deceased. Those who believed the testator was their parent and were treated as such are also considered as eligible individuals. At the time of their testators’ death, to remain eligible children must be either:

• Under the age of 18
• A full-time student under the age of 25, or
• Suffering from a disability

3. An adult child of the deceased
4. A registered caring partner of the deceased
5. A grandchild of the deceased
6. A person who was a member of the deceased’s household, and was likely to continue to be into the near future.

Those who are recognised an eligible person must be personally affected by the final outcome of the claim being made against the estate.

When a claim is made against an inheritance, a family provision can be instigated. During these proceedings, the Court will consider the following:

1. The will of the deceased;
2. Evidence that demonstrates the reasoning behind the deceased’s terms as specified in their will;
3. Evidence that provides greater insight into the deceased individuals’ intentions when writing their will, with particular regard to the claimant, including:

• The family relationship between the deceased and the applicant;
• The prior obligations and responsibilities of the testator to the claimant;
• Any physical, mental or intellectual disabilities that are experienced by the applicant;
• The character and conduct or the claimant.

In the case of a family provision order, the degree of provision given is determined by the Court by considering:

4. The extent to which the deceased individual had a moral duty to provide for the eligible person at their time of passing. The following factors will be taken into account:

• Was the claimant being supported by the deceased prior to their death?
• What are the financial needs to the applicant?
• How old is the applicant?

5. The extent to which the deceased individuals’ estate provides inadequate provision for the applicant.

• Has the claimant received proper maintenance and support from the deceased?
• What is the size of the estate and liabilities being questioned by the applicant?
• Has the applicant contributed to the building of the estate or assisted in maintaining the welfare of the deceased individuals’ family?

The intricacies of your specific circumstances will determine whether it would be more appropriate to contest a will or challenge a will.

If you have been left out of a deceased’s will or have not received proper maintenance and support, you have the opportunity to contest the will. This involves making a family provision claim against the testator’s estate with the intent of achieving a fairer distribution or their assets.

Challenging a will is to question its’ validity and propose that it should be dismissed. Claims of this nature dispute the will, and are common in cases where the deceased was suffering from a mentally degenerating disease at the time of the will’s creation. A will may also be challenged in instances where another individual is believed to have pressured the testator into distributing their estate a particular way, giving rise to the claim of undue influence.

If you were married or in a de facto relationship with the deceased, you will be first in line when it comes to distributing their estate. To be determined as the partner of the testator, you will either need to have children with them or have been living together for at least two years prior to their passing. If you have children with the deceased the estate will be shared and distributed accordingly.

The spouse of the deceased does not need to provide proof that they have an extra need for support, as an adult child would need to. The testator has a moral duty to ensure that their spouse receives sufficient financial security in the case of unforeseen contingencies and the ability to continue living their usual lifestyle. If a spouse believes they have not received adequate maintenance and support, they have the opportunity to contest their deceased partner’s will and make a claim against the estate.

If an individual dies without a valid or complete will, this is known as intestacy. In such instances, the estate will be distributed among family members as determined by a distinct legislative formula. Experiencing the loss of a loved one is already difficult, and intestacy can introduce a number of additional pressures into the situation. An inheritance lawyer can assist you during the entire process of distributing the estate, providing expert advice and guidance that will help you achieve a fair outcome without prolonging the experience.

The role of an executor is to ensure that the estate of the deceased is administered in accordance with their wishes. The executor of a will is appointed by the testator prior to their passing; however, they have no obligation to fulfil this role and can decide to forfeit such responsibility if they would like to do so. In such circumstances the role of executor will either be passed down to the substituted executor as named by the deceased or, in cases where this is not possible, an application can be made to appoint an administrator in court.

The executor of a will is assigned the legal and moral obligation to manage the assets and liabilities of the deceased, and there is the expectation that they will act in good faith when doing so. The executor of an estate is recognised as a trustee and, as such, must comply with the legislative standards expected of trustees. If it becomes evident that the executor is not conforming to such standards, they will be directly answerable to the court.

In the case of an estate dispute, the executor of the will may need to defend against claims. This can be required of them in any of the following circumstances:

• The will is challenged, with one or more people questioning its’ validity.
• A claim for proper and adequate provision is made under Part IV of the Administration and Probate Act 1958.
• There is a challenge as to the construction of terms of the will.
• The administration of Estate assets or a trust.

If you have been appointed as the executor of a will that is now involved in an inheritance dispute, our experienced estate lawyers can assist you in performing all of your required duties. Whether you would like guidance in administrating the estate or need to defend the will against a claim, please do not hesitate to get in contact with our expert team today.