Estate litigation lawyers are solicitors who are experienced in wills and estates litigation.
This may involve disputing a will or contesting a provision under as will.
Contesting your provision in a will is the process of disputing the amount of money or provision in a will left to you. This is called contesting a will, or in Queensland a family provision application.
Disputing a will is the process of challenging the validity of the deceased’s last will on a number of different grounds.
Estate litigation can be complex and difficult to understand. It is vital that you get advice from a suitably qualified wills and estates litigation solicitor today.
If you need to contest the validity of a will or you want to contest a will then our estates litigation lawyers can help you.
Queensland estate litigation lawyers
Contesting A Will in Qld (Family Provision Claim)
If you have been left out of a will, or the provision left to you is unfair, and you are an eligible person, then you may be able to contest the will by making a family provision claim under the Succession Act 1981.
A family provision claim is a claim is a claim against the deceased estate allowing for a further distribution for your proper maintenance and support.
There are a number of factors to consider when making a family provision claim, such as:
- Whether you are an eligible Applicant
- Whether you have brought the claim within the time Limits
- What the court considers when making a decision.
These are explained in more detail below or contact our estate litigation lawyers for more information.
Whether you are an Eligible Applicant
For our estate litigation lawyers to make a family provision claim you must be an eligible applicant. These include:
- The child of the deceased
- The spouse of the deceased
- A dependant of the deceased
A child of the deceased person can include the following people:
- A natural biological child
- An unborn child
- An adopted child
- A stepchild.
The spouse of the deceased person can include the following people:
- husband or wife
- de facto partner
- registered partner
- former husband, wife or registered partner
A dependent of the deceased person can include the following people:
- A parent of the deceased who has been wholly or substantially maintained by the deceased
- A parent of a child of the deceased who has been wholly or substantially maintained by the deceased
- Any person including for example the deceased’s grandchild or step-grandchild, niece or nephew, sister or brother, or a foster child, who has been wholly or substantially maintained by the deceased.
If you are unsure if you fit into the above categories then contact our estate litigation lawyers for more information.
Whether you have Brought the Claim within the Time Limits
There are two (2) time limits that you must meet if you want to contest a will and make a family provision claim. They are:
- Six (6) months from the date of death to give notice to the executor that you intend to make a family provision claim.
- Nine (9) months from the date of death to file your family provision application in the court.
If you miss the first (6 month) time limit, then the executor may distribute the estate and there may not be anything left to claim.
You may in some circumstances make an application outside of the time limits, but you will have to give good reasons for the reason for the delay.
Whether the application will be accepted will depend on the length of the delay in bringing the application, and whether the deceased estate has been distributed.
For more information on time limits please contact our estate litigation lawyers.
What the Court Considers when Making a Decision.
If you are an eligible person, and you are within the time limits then our estate litigation lawyers can help you can make a claim on the deceased estate.
The factors that are considered include:
- Any contribution that you made to the estate
- Any promises made to you about how they would divide the estate
- Any financial support provided to you during their life
- The financial position of the rest of the beneficiaries or any other claimants
- The nature and extent of your relationship
- The living standard to which you are used
- Any other matter which the court considers relevant.
Contact our estate litigation lawyers for more information in relation to how we can help you.
Estate Litigation Lawyers – Settling Proceedings
In most cases, if you can satisfy the above, then the dispute will usually settle before the need for a family provision application in the Court.
It is likely that the executor of the estate will rather settle than take the risk of defending expensive Court proceedings.
Our estate litigation lawyers can provide you with advice and assistance with contesting a will by making a family provision application.
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Disputing a Will – Estate Litigation Lawyers
If you feel that a will is wrong, then you may be able to dispute the validity of the will.
This can include if:
- You think that the will was forged
- You think that the deceased did not have capacity
- You think that the deceased was unduly influenced
- You think that the will has been fraudulently changed or manipulated.
We will explain these in a little more detail below. Alternatively, contact our estate litigation lawyers to discuss your options.
The will was Forged
A will may look like it has been forged if:
- The beneficiary is unlikely to be a true beneficiary
- The signature on the will does not match or is missing altogether
- The signing of the will was not witnessed correctly (or at all)
- The will looks very simplistic and contains a number of errors.
If this is the case then you might be able to dispute the validity of the will on these grounds.
The Deceased did not have Capacity
If the deceased did not have the mental capacity to be able to make decisions for themselves.
This is reasonably common in older people at the end of their lives.
For example, if Dementia or Alzheimer’s was the cause of death or QCAT had made orders to appoint a Guardian or Administrator – and nothing was done in relation to these, then you might be able to dispute the validity of the will on these grounds.
The Deceased was Unduly Influenced
If a person convinced the deceased before their death to favour them in their will, and that was at the detriment of others, and at the time the deceased was vulnerable dependent on others – then they may have been unduly influenced.
If you think that the deceased was unduly influenced, then you will need to be able to prove the following in Court:
- The person took advantage of the deceased
- The person benefited from that advantage
- The deceased trusted, or was dependent on, that person
- The deceased was susceptible as a result being frail or because of illness
- They left money and/or property in a way that was not normal.
If you think that you can prove the above then you might be able to dispute the validity of the will on these grounds.