At every stage of contesting or challenging a Will it’s important to have sound, experienced legal advice.
This is a special interest area of firm principal, Kylie Mildwaters. She has the skills, experience and knowledge required to secure the best possible result in all the circumstances of your case.
She can negotiate a settlement on your behalf to avoid the emotional cost of going to court or she can manage your court proceedings from start to finish if you prefer to travel that road.
Contact us to talk to her today before you change your mind and live to regret it.
our team of experts is here for you
factors to consider
If you’ve been left out of a Will, or have been left without adequate provision in a Will, there are two things to consider before making claims against deceased estates, namely:
- Is the Will valid?
- Can you make a claim against the estate?
Below are some common questions about the claiming process you may wish to know.
There are many circumstances in which you can challenge the validity of a Will such as:
- if you believe that the will is a forgery, or
- if the person lacked the mental capacity to make a Will, or
- if you believe that undue influence was brought to bear upon the deceased, or
- if there was fraud involved.
If you suspect that any of the above apply, you should contact a lawyer immediately.
They can then prepare and file a caveat with the Probate Registry to prevent the grant of probate issuing until proper investigations have been made as to whether the Will was valid.
If the Will is found to be invalid, the previous Will of the deceased will apply if they had one. If they did not have a previous Will then the law of intestacy will apply.
WHO CAN MAKE A CLAIM AGAINST THE ESTATE?
The people that can make a claim against an estate for further provision include:
- wife or husband
- domestic partner
- a person that has been divorced from the deceased
- natural or adopted child or grandchild
- step-child (in limited circumstances)
- parent, brother or sister (in limited circumstances).
Yes, there is. You have only 6 months from the date of the grant of probate to make a claim. In some very limited circumstances, an extension of this time frame may be granted.
It may seem that you have plenty of time to take action, but this is not the case at all.
It is absolutely imperative that you obtain legal advice about your circumstances as soon as you consider that you may wish to make a claim.
This is because even though you have a right to make a claim within 6 months of the grant of probate, if the executor does not have notice of your intention to make a claim, they may distribute all of the assets before you make a claim. If this occurs, it can be very difficult to get those assets back and can jeopardise the success of your claim.
In South Australia, the Inheritance (Family Provision) Act (“the Act”) provides that, if a person entitled to claim the benefit of the Act has been left without adequate provision for their proper maintenance, education or advancement in life, they can make a claim against the estate.
The claim that they can make is for an order that such provision as the Court thinks fit be made out of the estate of the deceased person for their maintenance, education or advancement in life.
Each case is unique and so these sorts of matters do not have black and white rules that can be applied. There are various factors though that can influence the outcome of a claim under this legislation and some of them are:
- the size of the estate
- whether there are other beneficiaries that need to be considered such as other children and the spouse of the deceased
- whether the person claiming has engaged in conduct that could be considered to disentitle them to receiving further or any provision out of the estate
- the financial circumstances of the person making the claim.
The court process is not about making a new Will or about making orders that make the distribution of the estate fair. This legislation is in place to enable the court to make orders to provide adequate provision from an estate for any person claiming the benefit of the Act.
First, contact a lawyer, who can assess your claim and discuss the particular circumstances of your claim. They will provide you with advice about the potential success of your clam and what your options are.
If you decide to proceed with making a claim, your lawyer will advise you about whether it is time to give notice to the executors of your intention to make a claim or whether your claim is better protected another way. After receiving the go ahead from you, they will take the necessary steps to ensure that the assets of the estate are not distributed without your claim being resolved first.
Once your claim is safely protected, your lawyer will request further information from you and suggest that an offer to settle the matter be made to the executor or executors. Many claims are settled through negotiation at this stage.
If the matter isn’t resolved within 6 months of the grant of probate, documents can be prepared and filed with the court to initiate proceedings. Negotiations can still continue after court proceedings have been issued and often the matter is resolved by consent well before trial.
Failing all else, the court proceedings will be determined by a Judge making a decision about what, if any, provision the claimant is to receive from the estate.
More often than not, the costs of making a claim against an estate are paid from estate funds. However, this is not always the case, so it is important to check this with your lawyer from the outset.