CONTESTED ESTATES AND FAMILY PROVISIONS ACT CLAIMS
Due to increasing levels of prosperity, challenging wills and probate has become a specialist legal area over the last decades with Australian solicitors, will lawyers & probate lawyers dealing with contested wills and disputed probate on a regular basis. Many people will leave property at the time of their death however not everyone will be able to determine exactly who receives those assets. This may be due to a number of factors, not least of which is that many people fail to make a will which means that assets are distributed after death according to statutory provisions. This may mean that unintended beneficiaries receive a substantial legacy that they were not expecting. The next most common cause of estates being distributed in a way that is not consistent with the intentions of the person making the will relates to wills that are poorly drafted or badly executed that may be invalid in whole or in part. Thereafter inadequate drafting may ensure that some assets are not distributed and finally some testators fail to appreciate that their estate may have responsibilities to dependents for whom they may have made inadequate provision.
At Schofield King, our will and probate lawyers have the required experience and knowledge to assist you with any and all matters relating to wills, disputes, contested wills and the validity of such documents. Sometimes a person who was not included in the original will feels that they are owed a claim to some of the assets or property involved in the will. In these cases, and cases of a similar nature, the law is very complicated. It may be the case that there is some defect in the will, or a will has not been prepared, or there is a question of whether the will-maker had his or her full mental capacity at the time the will was created. In this area of law, some relevant questions are:
1. Did the deceased understand what they were doing when they created the will?
2. Did he/she understand what their assets were?
3. Did he/she understand who they should be considering when making that will?
Often medical concerns or issues will create uncertainty about the validity of a will, and that will can be contested.
If you need legal advice from the expert will lawyers and probate lawyers in Sydney and surrounding areas, then do not hesitate to use our free helpline or fill in the contact form on this webpage for one of our friendly professionals to call you back for a free chat about your matter.
For a will to be legally valid it must always have been created under certain regulations. For instance, the person making the will needs to be over the age of eighteen and of sound mind at the time the will is made, and two additional witnesses to the will must have signed the document and they cannot be included in the document itself as beneficiaries. If a witness is a beneficiary they will lose their inheritance! The will must also be free from undue influence. If a person has influenced the will-maker then the validity of the will may be called into doubt.
If there is no valid will to be relied on then the deceased is described as “intestate”. In these circumstances the distribution of the estate can be hotly contested by a number of interested parties, and can be a legal minefield for the people who may have a rightful claim to that estate.
If you think that you might be one of those people, please do not hesitate to call us for a free preliminary chat.
Sometimes it really does happen that an original will is lost somewhere and the appointed executors can attempt to prove a copy of the will and thereby obtain a grant of probate. Understandably, if these copies do not include beneficiaries who say they were included in the original there is often a dispute requiring an experienced will lawyer or probate lawyer.
Subsequently such parties will attempt to prove in court that the will was not lost but rather destroyed by the testator, which would have the effect of invalidating the copy and mean an earlier version is the valid will. As you can see, contesting the content of a will is never a simple task!
Legal documentation and evidence is required if you want to improve your chances of a successful claim of this type. Only the best legal advice from highly experienced probate and will lawyers such as the ones we have at SK Legal here in Sydney will help.
If the will-maker has not made provided sufficiently for certain people, those people may be able to bring a claim under the Succession Act 2006. Those persons are defined as “eligible persons”, and include the spouse of the deceased (whether by marriage or de facto), the children of the deceased (whether natural or otherwise), and in certain cases other persons who were dependent on the deceased such as grandchildren, persons with close relationships to the deceased, or people living with the deceased.
A claim of this nature, sometimes called a “Family Provisions” claim, can allow the Court to make some provision for the eligible person to receive a benefit from the estate of the deceased.
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