Put your mind at ease: The most common concerns we hear as Estate Lawyers

I think I am entitled to assets under a will, but haven’t seen a copy

A common problem we hear as estate lawyers is clients being uncertain of their entitlements under a will, having not been provided with or seen a copy. It can be especially difficult for those who may not have a close relationship with the executor of the estate.

Victorian legislation does however provide a long list of persons who are entitled to inspect and make copies of a will. Included in this list are spouses/domestic partners, parents and children of the deceased.

The executor of the will is taking too long, or not properly carrying out their duties.

Another common problem for those potentially seeking to challenge a will is when the Executor is taking an unreasonable amount of time to get control of estate assets and start distribution. This process usually begins when Probate is applied for with the Supreme Court. Probate documents certify the will and provide the executor authority to administer the estate.

This is usually done within a year of the deceased’s passing, however there is no strict legal timeframe. If you feel the executor is taking an unreasonable amount of time, there can be steps taken to have the court enforce deadlines and in more extreme circumstances, remove them as executor of the estate.

A similar application to remove the executor may be submitted should they be engaging in conduct that is not in the best interests of the estate. If you believe that an executor is acting in any way improperly, speak to an Estate Lawyer to gain an idea as to whether such an application may be sought.

Do I have to go to court when contesting a will?

A common and valid concern with many clients is having to go to court when contesting a will. The costs, time and formality involved with court procedure is well-documented deterrent for many.

However, most will dispute and family provision claims are settled outside court. When a claim for further provision is brought, a court will give directions that are adhered to before a matter is to reach the trial stage.

Commonly, such court directions are for parties to hold a mediation. This is an informal conference in which all parties to the dispute will meet and attempt to resolve issues regarding the distribution of the estate assets.

Should a mediation fail to achieve such resolution, the parties are then able to have the matter determined by a judge at trial.

The will has a no-contest clause

Sometimes, a will includes a clause seeking to prevent any challenges to the will once someone has passed. These are referred to as ‘no-contest clauses’.

You should not be discouraged from making a claim for further provision merely due to the existence of such a clause. Often, these types of clauses are not recognised by the court and you should still seek legal advice regarding your rights to challenge. 

I don’t get along with the other people involved in the Estate. Do I have to see them if I challenge the Will? / I don’t want to cause problems in my family

Even in such circumstances, it is often worth discussion of your issues with an experienced Estate Lawyer. Once they have advised of the strength of potential claims and perhaps likely outcomes, you will be better placed to determine whether it is worthwhile to proceed.

Does Superannuation form part of a deceased estate?

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.

Speak with an Estate Lawyer

If you had any further questions about contesting a will, or believe that you have received less than what you are entitled and find yourself in a potential will dispute or needing to defend a will contact the team at Hentys Lawyers today.

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