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Will Disputes and Family Provision Claims

Have you been
left out of a will?

Here’s what you can
do to make it right.

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.

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Andrew McQuilkin discusses Wills and Estates

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Family Provisions Claims – Challenging Wills & Estate Disputes

What is a Family Provisions Claim?

What is a Family Provisions Claim?

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’. Our Lawyers can help you with challenging will and estate disputes.

Am I eligible to make a Family Provision Claim?

Am I eligible to make a Family Provision Claim?

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.

If you fall into one of these categories, you should contact us to discuss. Our Lawyers can help you with your challenging will and estate dispute.

What factors are taken into account in a Family Provisions Claim?

What factors are taken into account in a Family Provisions Claim?

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.

Our lawyers can obviously take instructions from you with regard to whether any of the above considerations should be considered in your case. This will assist in preparing your challenging will and estate dispute.

What about my Legal Costs?

What about my Legal Costs?

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 challenging will and estate dispute matters. For more about our Cost promise, click here.

Client Case Success Stories

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Laura’s Story

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

Don’t just take our word for it.
Trust the word of the many clients we’ve helped.

  • Schofield King Lawyers have changed my life. I was always kept up to date on where my case was at. I was referred to them from someone who had previously experienced their service. I highly recommend their service to anyone seeking legal advice.

    Eric Negligent Claim Client
  • The best highlight in Schofield is being trustful and transparent. Very welcoming as well, they are open to support anytime.

    Naghmeh Negligent Claim Client
  • As somebody whom has never had anything to do with the Legal system I was quite intimidated by the whole process, however right from my first meeting with Andrew I felt in good hands. I trusted him to take care of me and do the right thing for/by me. My case was finally settled "out of court" with a better result than we first anticipated. This has helped relieve financial pressure and also allow me to pursue a new direction in life. A mere thank you seems insufficient...God bless your team.

    Cathy Negligent Claim Client

Alistair Stewart – Senior Associate at Schofield King

What Can I Expect From
Schofield King Lawyers?

  • 1 Free Consultation

    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 in your challenging will and estate dispute.

  • 2 Application

    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 what you’re entitled to as quickly as possible, while minimizing any harm to your family relationships. Generally cases are required to go to a mediation before any final hearing of the case. Often we are able to reach resolution of your case at this point.

  • 3 Outcome/Settlement

    We’re always bound by your instructions, which means that we will recommend settlement options if we consider them to be appropriate, but the ultimate decision will be yours. Regardless of what that is, we’ll be in your corner to keep you as informed as possible at all times.

    Let us do our best to make insurance pay.

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lawyers.

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