Successful Will Contests: Case Studies

The prospect of contesting a Will can be overwhelming when first considering it as an option. That’s why we have compiled some case studies for you to look at in order to help inform your decision whether contesting a Will is right for you, and outline the sorts of matters we deal with on a daily basis.

Contesting the Will of an Estranged Biological Mother

General FactsWhat did the will bequeath?

This client, C, was the daughter of the deceased who passed away with an estate worth around $1 million, bequeathing C $20,000.

The rest of the estate was divided between the deceased’s other three children, two of whom received the amounts of $20,000 and $50,000, while last child (who was also the executor) received the remaining balance which amounted to just above $900,000.

Relationship with the deceased

C’s relationship with her mother was estranged for most of her life. She lived with her father from the age of 12 years old after her mother left home, and only saw her mother again when she was about 15. She did not have further contact with her mother again until she was in her late twenties where they would lunch together and meet regularly.

However, after a falling out during C’s early thirties, C and her mother did not speak again, despite many attempts by C to rekindle the relationship. At the time of the deceased’s passing, they had not spoken for about 30 years.

Health and Financial Circumstances

When C got in contact with us, she was unemployed and living off a disability pension with a number of physical and mental health ailments. A great deal of anxiety was related to how she would manage financially as she was approaching Old Age Pension age and due to her ailments and age, her prospects of finding work were slim to none.

Due to her limited income, C was having to go without a number of health-related necessities such as dental work or new glasses. Furthermore, C’s property was also in desperate need of maintenance and repairs, and a number of appliances required replacement.

Process with Hentys Lawyers

After receiving C’s initial enquiry, Hentys held a conference with the client so we could get a better understanding of the her needs and prospect of success. Once that was assessed, we took C on as a client and applied for a copy of Probate. We also reached out to the law firm representing the estate and informed them of our intention to initiate a Part IV application.

Once the initiating documents were filed with the County Court, we then worked with the solicitors representing the estate to come to an agreement with how the timetabling orders were to be set out. That is, what the timeline of the proceedings would look like.

After these were finalised and approved by the court, we worked closely with C to assist her in writing up her affidavit. This affidavit documented C’s upbringing, the history of C’s relationship with her mother, and her health and financial circumstances. It was important for us to honestly and frankly outline these circumstances to demonstrate that C was in need of further provision, and the deceased had a moral obligation to provide for C in her Will.

One C’s affidavit was exchanged with the estate and we received the executor’s affidavit, we then prepared C for the court-mandated mediation. This preparation involved C meeting with the counsel who would attend the mediation with her, to speak through her matter and come up with an action plan going into the mediation.

What was interesting about this matter was that one of C’s siblings also made a Part IV application. This meant that Hentys worked closely with the estate’s solicitors and the sibling’s solicitors so that both matters were heard together at the same mediation and affidavits were exchanged between all parties.

Outcome

Ultimately, the matter did not progress to trial and a settlement was reached in mediation.

C received $200,000, $180,000 more than her initial entitlement under the Will.

Time it took to resolve matter from initial enquiry

9 months

 

Contesting the Will of a Step-parent

General FactsWhat did the will bequeath?

The client, (X), was the step-son of the deceased who passed away with an estate worth about $450,000, bequeathing C $0.

The estate was divided as follows:

Relationship with the deceased

X’s relationship with the deceased was acrimonious during her relationship with X’s biological father (B). Whilst the deceased was a good family friend of X’s parents growing up, once the deceased and B began to formally see each other, the deceased made considerable effort to keep X and his siblings from contacting B.

Before B’s death, he and the deceased had spoken to a family member and said that they would leave their estates to X and his siblings. Therefore, once B passed away, X and his siblings did not pursue a claim against B’s estate because they did not want to cause the deceased unnecessary stress and believed that she would leave them her estate out of respect of B.

After B’s death, C and the deceased did not have any contact. Upon the deceased’s passing, it became clear that she did not abide to the agreement she reached with B before his death and did not leave her estate to X and his siblings.

Health and Financial Circumstances

When X contacted us, he had a reasonable about of savings, however, he had a number of mortgages placed on his residential property to assist keep his small business afloat as it was severely struggling due to the bushfires over that summer.

X’s residential property was also in desperate need of maintenance, with X estimating that it was in need of about $100,000 worth of repairs. 

X also suffered from a number of physical and mental health ailments and was in need of further diagnostic procedures.

Process with Hentys Lawyers

When we first received X’s enquiry, probate of the deceased’s estate was yet to be granted. As a result, we filed a Warning Notice with the Supreme Court which served to tell us when probate of the estate had been granted. Along with this, we also kept an eye on the Supreme Court’s Application Index just in case there was any delay between probate being granted and the court advising us of this fact.

Once probate was granted and we received the copy of probate, we conferred with X and took him on as a client. The next step we took was to reach out to the law firm representing the executors and inform them of our intention to initiating a Part IV application.

What was interesting about this matter was that the solicitors representing the estate denied X’s entitlement to a Part IV claim, stating that there was no parent/child/stepchild relationship between X and the deceased. However, after a number of items of correspondence the estate eventually advised us that they would defend against X’s claim.

Once the solicitors of the estate confirmed their role in the proceedings, the initiating documents were filed with the County Court and we then worked with estate’s solicitors to come to an agreement with the timeline of the proceedings and set that out in timetabling orders.

After these were finalised and approved by the court, we worked with X to assist him in drafting his position statement. A position statement is essentially a shorter version of an affidavit which is used in proceedings where, instead of a mediation, there is a Judicial Settlement Conference. X’s position statement documented the history of X his relationship with the deceased, the issues between them leading up to his father’s passing, and his health and financial circumstances.

One X’s position statement was exchanged with the estate, we then prepared C for the Judicial Settlement Conference. This involved X meeting with our General Counsel who would attend the Judicial Settlement Conference with him. This allowed them to speak through the matter and come up with an action plan going into this conference.

Outcome

The matter ended up settling in the Judicial Settlement Conference.

X ended up receiving $82,000 in settlement of his claim.

This matter was particularly noteworthy as it concerned circumstances involving a step-parent/step-child relationship where the relationship between the two was strained.

Time it took to resolve matter from initial enquiry

1 year

 

Contesting the Will of an Estranged Biological Father

General FactsWhat did the will bequeath?

The clients, Y and Z, were two children of the deceased who passed away with an estate worth about $1,690,000, bequeathing the entirety to his surviving partner.

Relationship with the deceased

Growing up, both Y and Z had a difficult relationship with the deceased, however, into adulthood both tried to maintain contact with their father. Y would speak to the deceased on the phone fortnightly or monthly and Z would visit the deceased a few times a week as they lived close to one another and would speak on the phone regularly.

However, in the years leading up to the deceased’s passing, both children lost contact with the deceased. Y did not see him in the two years leading up to his death and Z was estranged from him for 13 years prior to the deceased’s passing.

Health and Financial Circumstances

Y suffers from a number of physical and mental health ailments which require regular operations and medication. Unfortunately, this has affected her ability to work and provide for herself. Although she has continued to work part-time, she still relies on the disability support pension. Financially, Y struggles to get by and only just make ends meet.

Z also suffers from a number of physical and mental health ailments which require regular treatment and medication. Financially, whilst Z owns a considerable share portfolio and his partner owns their residential property outright, they have another property which was significantly mortgaged and was losing money. Additionally, monthly expenditure far outweighed their monthly income.

Process with Hentys Lawyers

Z was the one to initially contact us with his enquiry and at this time, probate of the deceased’s estate was yet to be granted. After speaking with Z and Y (who had told Z of her interest in contesting the Will too), we took them on as clients and wrote to the solicitors for the estate and requested a copy of the deceased’s Will. We also requested an estimate of when probate would be finalised.

Additionally, we filed a Warning Notice with the Supreme Court which served to tell us when probate of the estate had been granted. Additionally, we kept an eye on the Supreme Court’s Application Index just in case there was any delay between probate being granted and the court advising us of this fact.

Once probate was granted and we received the copy of probate, the next step we took was to reach out to the law firm representing the executors once more and informed them of our intention to initiate a Part IV application on behalf of Y and Z.

Once the solicitors of the estate confirmed their role in the proceedings, the initiating documents were filed with the County Court and we then worked with estate’s solicitors to come to an agreement with the timeline of the proceedings and set that out in timetabling orders.

After these were finalised and approved by the court, we worked with both Y and Z to assist them in drafting their affidavits. These affidavits documented their upbringing, the history of their relationship with the deceased, and their health and financial circumstances.

One Y and Z’s affidavits were exchanged with the estate, we then prepared them for the court-mandated Mediation. This involved Y and Z meeting with our General Counsel who would attend the Mediation with them. This allowed them to speak through the matter and come up with an action plan going into this conference.

Outcome

Ultimately, the matter did not progress to trial and a settlement was reached in mediation.

Y received $199,000, and Z received $49,000.

Time it took to resolve matter from initial enquiry

1 year

Speak with an Estate Lawyer

If you’re interested in contesting a will, getting in touch with an experienced estate lawyer is a great first step to take. At Hentys, our team can determine whether you’re eligible to contest the will and how much merit your case has, while also providing you with expert guidance throughout your estate dispute if you decide to proceed. To discuss your case, contact us today.

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