Wills and Estate Lawyers

Do you believe you have been unfairly left out a will?

Have you considered disputing a loved one’s estate?

Are you wanting to contest or challenge a will, but don’t know where to start?

Contact Justice Family Lawyers today. Our qualified, professional solicitors are experienced will and estates lawyers. Our team are skilled in all aspects of will and estate law and can provide you with expert, confidential advice.

 

Making A Will

Making a will in Australia is the only way you can ensure your assets are distributed according to your intentions and it is a relatively affordable and straightforward process.

However, it is important to ensure you follow the law so that your will is considered valid and legally binding.

While there are several DIY will kits available in Australia, you should consider talking to a solicitor when making your will to ensure it is valid at the time of your death.

Remember, although DIY will kits are a cheaper option than having a solicitor draw up your will, keep in mind you are writing a legal document which may be deemed invalid if not correctly executed.

 

Contest A Will

When somebody close to you dies, and you feel you have been unfairly left out of the estate, you will need to know how to contest a will.

There are several steps involved in contesting a will, and they must be completed within the NSW time limit to be considered by a Court.

Not everybody can contest a will and interested parties have to meet specific requirements to make a claim.

Contesting a will can be a complicated legal process with differing laws across Australian states. If you believe you are eligible to make a claim, you should make contact with a qualified wills and estate lawyer as quickly as possible

 

How to Stop Someone Contesting A Will

Most people assume that if they make a legal and valid will it can’t be contested by family members or other interested parties. However, this is not the case, with the issue of how to stop someone contesting a will in NSW being a complex one to understand.

The simple answer is that you can’t ever stop someone contesting your will. This is because state and territory legislation across Australia allows ‘eligible’ people to make a claim against an estate if they can establish that they have not been adequately provided for in the deceased’s will.

While eliminating the chance of someone contesting your will is not possible, you can take steps to diminish the likelihood of such a dispute arising. Speaking to an expert wills and estates lawyer about how to minimise the liklihood of disputes is a good start to protecting your estate.

 

5 Common Disputes to a Will

While people approach will dispute lawyers in Sydney with wide-ranging issues regarding their loved one’s wills, some disputes are more common than others.

Here are 5 common disputes to a will we see regularly and how such disputes may be resolved.

 

Executor Delay

Any person named as an executor of a will has specific responsibilities they need to carry out.

These include carrying out the wishes of the deceased in regards to the distribution of assets under the estate. In doing so, most executors will need to obtain a Grant of Probate from the court. You can speak to our probate lawyers if you wish to apply for probate.

While there is no set time limit in which an executor must take action, the basic rule of thumb is what is known as the ‘executor’s year’. This suggests that executors should apply for probate within 12 months of the deceased’s death.

If an executor delays the probate process for over a year, expected beneficiaries of the will can apply to the Supreme Court asking the court to set a deadline, by which time the executor must have obtained a Grant of Probate.

If the executor fails to do so, beneficiaries may choose to take further action, and in some cases may attempt to have the executor removed.

 

Disagreements about Property in the Estates

One of the most common disputes we see concerning wills and estates is disagreements among beneficiaries as to what should happen with estate property.

This usually occurs when family members can’t agree as to whether or not they should sell the family house and divide the profits, or whether the home should stay in the family for future generations.

When making their will, the deceased may stipulate that the beneficiaries have the option to buy the home from the estate if they so choose. However, even without this provision, the beneficiaries may still be able to come to this arrangement.

If one or more beneficiaries decide they would like to buy the property from the estate, it is advisable to get a professional valuation so that all interested parties agree upon an amount.

 

Unauthorised Transfer of Assets

In cases where one of the beneficiaries of a will is also named as the executor, other beneficiaries may sometimes argue that the executor has made a suspicious or unauthorised transfer of assets to the detriment of the estate.

When there is a suspicion that such transactions have been made forensic accountants are often called in to determine whether property and/or money was improperly removed from the estate.

In such cases, the executor will most likely be removed and/or have their share of the estate downgraded due to their mismanagement.

 

Accusations of Undue Influence over the Will Maker

In some instances, a beneficiary may be accused of asserting undue influence over the will-maker to write the will in such a way that goes against the testator’s true wishes.

Undue influence may occur through intimidation, blackmail, flattery or deception and can often be a difficult thing to prove.

If undue influence or coercion is proved to have occurred, an earlier draft of the will may be deemed valid instead, or intestacy rules will determine how an estate is to be divided.

 

The Will is Not Deemed Legal and Valid

Sometimes, beneficiaries will call into question the validity of a will.

A will can be deemed invalid for several reasons, including:

• It was not prepared correctly. This often occurs when people draft their own wills or use DIY will kits without obtaining the advice of a professional lawyer.
• There is proof of undue influence from a third party.
• The will-maker is considered not to have had testamentary capacity.

In modern Australian case law, in the case of Banks v Goodfellow, Cockburn CJ set the standard for what constitutes testamentary capacity :

‘a testator shall understand the nature of the act, and its effects; shall understand the extent of the property of which he is disposing; shall view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.’

 

When a Will Dispute ends up in Court

When a will dispute ends up in court, most people have no idea that a judge can essentially re-write someone’s will if they so choose. Even if the will is determined to be valid and the will-maker was of sound mind when making their will, a judge can go against the wishes of the deceased for several reasons.

In an investigation into challenges to wills in NSW, journalist Richard Ackland noted that ‘[t]here are at least eight instances from last year [2011] in the NSW Supreme Court where judges re-wrote wills and, in some of them, made provision for people who had been specifically excluded by the deceased’.

Our wills and estates lawyers see many people are surprised it is not the role of the court to ensure a fair or equal division of a deceased estate.

As Bryson J noted in the case of Gorton v Parks:

‘The Court’s role is not to reward an applicant, or to distribute the deceased’s estate according to notions of fairness or equity, nor is the purpose of the jurisdiction conferred by the Act the correction of hurt feelings or sense of wrong, felt by the applicant. Rather, the Court’s role is of a specific type and goes no further than the making of “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant.’

The likelihood of a judge re-writing a will increases if the deceased made several wills throughout their lifetime, or were the head of a blended ‘modern family’ including multiple spouses, stepchildren, or ‘eligible’ grandchildren.

When a will dispute ends up in court, it can often rip a family apart, causing permanent harm to relationships long-term.

It is advisable to try and settle any will disputes through mediation before reaching court with the assistance of a trusted wills and estates lawyer.

 

Case Study: The Estate of Bob Hawke

Just two short months after the death of former Prime Minister Bob Hawke, a legal battle was already brewing over his estate.

Upon his death, Hawke’s three children with his first wife, Hazel, each received a $750,000 payout from his estate which includes proceeds from the sale of his $15 million waterfront home in the Sydney suburb of Northbridge. The son of his second wife, Blanche d’Alpuget, received the same amount, despite not being related by blood.

Hawke’s will left the rest of his sizable estate to d’Alpuget, with whom he had a scandalous affair in the mid-90s.

After an alleged tense phone conversation with her father’s second wife, one of Hawke’s daughters, Rosslyn Dillon, 58, has started proceedings for a larger share of Hawke’s fortune.

Dillon, who was left devastated at the news of her father’s passing, is disputing the will on the grounds that it does not provide for her proper maintenance, education or advancement in life, pursuant to Chapter 3 of the Succession Act 2006 (NSW) (Act).

Dillon has employed the services of a well-known probate law firm in Sydney who, if they are unable to settle with d’Alpuget out of court, may have to take the case to the NSW Supreme Court.

While Dillon and Hawke’s other two children were estranged from their stepmother for many years, Rosslyn told ABC’s Australian Story the rift had long been repaired, stating ‘[p]articularly since I lost Mum, we have become extremely close.’

However, if Dillon and d’Alpuget’s probate lawyers can’t come to an amicable arrangement, what work they have done to repair their relationship may be all but lost.