Have you been left out of a will?
Or have been inadequately provided for?
If you live in New South Wales, we may be able to help.
Estate Disputes are a tricky and complicated area of law, and any potential claimant should seek the very best legal advice.
Conrad Curry has been conducting estate litigation for 20 years and has experienced and resolved just about every legal problem within the field for his clients.
Usually, the last will of the deceased is the document which is seen to be valid and binding. However, the last will may be held to be invalid in circumstances where:
- the deceased lacked the capacity to make the will as a result of an illness of the mind (testamentary capacity);
- the will was made as the result of undue influence or compulsion brought to bear on the deceased when the will was made;
- the will was brought into existence as the result of fraud.
If you are a beneficiary or an executor under a prior will of the deceased, you may seek to have the prior will validated (admitted to probate).
If successful then the last will has no effect at law.
Even in circumstances where a will is not invalidated you may have a claim if you have either been left out altogether or not adequately provided for.
In New South Wales this is known as Family Provision.
People who are eligible to bring a claim for family provision include:
- a person who was the wife or husband of the deceased person at the time of the deceased person’s death,
- a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
- a child of the deceased person,
- a former wife or husband of the deceased person,
- a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
- a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
There are a number of considerations a Court must take into account before making a Family Provision Order, including the relationship between the deceased person and the claimant. However, being estranged from the deceased person prior to their death is not necessarily a bar to a successful claim.
Whilst, a claim is required to be brought within 12 months of the death of the deceased person, there are circumstances where the Court will make allowances for the late making of a claim.
You should know your rights as a beneficiary. It may be the case that you are a beneficiary under a will but can’t get the executor to give you any information, or to distribute your interest.
Many problems arise as the result of wills:
- Non-compliance with the formal requirements;
- The failure of certain terms because the assets dealt with no longer exists;
- Partial or total intestacy where assets have not been disposed of under a will, no will exists or the beneficiary has passed away;
- Construction problems in wrongly specifying the asset or poorly worded charitable clauses;
All sounds a bit complicated?