Kempsey’s Will Disputes
and Family Provision Claims
and Family Provision Claims
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“Disputes about estates and wills can be messy and stressful, especially since they’re often between loved ones. It’s our job to resolve the matter as quickly and amicably as possible so that your relationships and your entitlements are protected in equal measure.”
– Alistair Stewart, Lawyer
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Family Provisions Claims – Challenging Wills & contesting estates
When someone dies and lives behind assets such as, money or real estate, those assets have to go somewhere. Most people have a Will. A Will is a legal document which sets out what a person wants to happen to their assets when they die. If a person dies without a Will this is known as ‘intestacy’ and special rules apply as to who the assets go to. A person’s assets after they have died is call their ‘Estate’.
Unfortunately, some people make a Will that doesn’t provide for or provide enough for the people that really need it. Sometimes people who would have been included in a will if there was one miss out because of the rules of intestacy.
If you find yourself in either of these situations, you may be able to make a Family Provision Claim. A Family Provision Claim is an application to the Supreme Court seeking a share or a larger share of a deceased’ person’s estate. This is known as seeking an order for ‘Provision’.
In order to bring a Family Provision Claim you need to be a ‘eligible person’ and commence proceedings in the Supreme Court within 12 months of the date of death. People who are eligible to make a Family Provision Claim include:
- the wife or husband of the deceased
- a person who was living in a de facto relationship with the deceased (including same sex couples)
- a child of the deceased (including an adopted child)
- a former wife or husband of the deceased
- a person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased
- a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.
Before the Judge makes an order for provision from an estate he or she consider the following:
- the relationship between the applicant and the deceased person
- any obligations or responsibilities owed by the deceased person to the applicant
- the value and location of the deceased person’s estate
- the financial circumstances of the applicant, including their current and future financial needs
- whether the applicant is financially supported by another person
- whether the applicant has any physical, intellectual or mental disabilities
- the applicant’s age
- any contribution made by the applicant to increase the value of the estate
- whether the deceased person has already provided for the applicant during their lifetime or from the estate
- whether the deceased person provided maintenance, support or assistance to the applicant
- whether any other person is responsible to support the applicant
- the applicant’s character
- any applicable customary law if the deceased was Aboriginal or Torres Strait Islander
- any other claims on the estate
- any other matter the Judge may consider as relevant.
If you are successful in your Family Provision Claim the Court usually orders that the Estate pay your legal costs.
We offer ‘No Win, No Fee’ and fixed fee costing arrangements. For more about our Cost promise, click here.
We’ll have an initial, obligation-free chat with you about your relationship with the person who has recently passed. We’ll go through the legal checklist in terms of what you need to bring a claim, and will tell you from the get-go whether we think you have a case.
If you do, we’ll get all the details of your story and put together an application to the Court. Once that is on foot, our job will be to get you what you’re entitled to as quickly as possible, and without causing irreparable harm to your family relationships.
We’re always bound by your instructions — that means that we will recommend settlement options if we consider them to be appropriate, but the ultimate decision will be yours. Not to fear though, we’ll be there to keep you as informed as possible at all times.
Client Case Success Stories
Schofield King acted for a client in a sensitive matter concerning her mother’s estate. Laura had cared for her mother thoroughly for a long period of time but in the final years (as is often the case) a number of other people began to come out of the woodwork. Through a few strategic conversations between the new people and our client’s mother, the relationship between our client and her mother deteriorated. When Lauras’ mother sadly passed away, our client found out that she had been completely ignored in the will.
We stepped in, and commenced a claim on behalf of Laura seeking a share of the estate on the basis of Lauras’ relationship with her mother as well as the years that she thoughtfully and lovingly cared for her mother.
The matter resolved at mediation, without the need to proceed to a full hearing. Laura was extremely content with the settlement that she received, and (perhaps more importantly) was glad to be able to put the dispute behind her and begin to mend fences with her family.
While it may not always be the case that parties in estate disputes want to be on good terms when the dispute is over, we treat each case with the personal relationships in mind as well as the ultimate outcome — to make sure that you’re all set on both fronts when all’s said and done.
What Our Will Disputes and Estate Litigation
Claims Clients Say
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Trust the word of the many clients we’ve helped.
I was referred to Schofield King Lawyers, by another lawyer. He told me that they would be the best, that they would fight for me and would do everything possible to help me win. He didn't lie. Jimmy and the team worked with me to help me get the best outcome possible for my case. It was so good, even I, didn't anticipate it! Thank you to Jimmy and the whole team for your hard work and especially your patience with me when I was worried or stressing.
The care and advice I received was more than I ever expected and for which I’m greatly appreciative of. Thanks
Right from the first appointment I was treated kindly and with empathy. Everything was explained in detail and I was asked not to hesitate if I had any further questions. All my queries were responded to promptly. I highly recommend Schofield King Lawyers.
Again , just wanted to thank Jimmy and his staff at the Narellan office, my case was tended to professionally and with empathy and understanding, kindness and all done in a timely manner. I would recommend you guys in a heartbeat, cheers.
I felt I was alone and doubtful however Jimmy from Schofield King Lawyers reinstated my faith of believing in myself. Thank you Jimmy for winning my case. It matters more than you know.
Schofield King Lawyers were very diligent and understanding of my workplace bullying and harassment work injury damages matter after having gone through 3 different solicitors/legal firms in over 4 years. Without the immediate help, patience and support of Schofield King Lawyers’ Andrew McQuilkin, my family would have continued to suffer emotionally, psychologically and financially. This has given me and my wife the peace of mind we have been seeking for so long to begin our healing process.
After injuring my back at work and being continuously denied liability by my insurance. With special thanks to Jimmy, have been in to battle and won me the right to get me the treatment I needed.
Schofield King Lawyers, were fantastic, kept us up to date all the time, were always there to answer any questions, they were very professional at all times. I would have no hesitation recommending Schofield King Lawyers.
Client names and photos have been changed to protect their privacy and confidentiality, but all testimonials are true and accurate accounts from the clients.
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