Will & Estate Disputes

Will and Estate Law is an important area of legal practice in Australia. It offers essential services to individuals who want to manage their assets effectively during their lifetime and after their passing. This field of law plays a crucial role in ensuring that a person’s final wishes regarding the distribution of their estate are respected and executed according to their desires. As family dynamics become more complex, the need for clear and comprehensive estate planning becomes even more important.

Creating a legal Will is usually the first step. This involves formal documentation that outlines how one’s assets should be distributed after death, identifies beneficiaries, and may appoint guardians for minor children. The process of drafting a Will must adhere to specific legal standards to ensure its validity and enforceability. However, life changes including marriage, divorce, or the birth of children often require updates to a Will to reflect new circumstances. These amendments must also follow strict legal protocols to maintain the Will’s validity.

Contesting a will is another legal process that comes under Will and Estate Law. It is a means by which individuals can challenge the validity of a will, if they believe it doesn’t accurately reflect the intentions of the deceased. This can happen if they suspect that undue influence played a role in shaping the will or if the deceased lacked testamentary capacity. Disputes can also arise over the interpretation of a will or the proposed distribution of the estate. This may require legal intervention to resolve the matter.

Beyond these concerns, estate planning includes asset management, tax minimisation, and smooth wealth transfer. This involves trusts, business succession planning, and superannuation nominations.
Another critical element is the appointment of a Power of Attorney. This is a legal document that gives someone else the authority to make decisions on your behalf regarding financial, legal, and medical matters. Additionally, there is also the option of setting up an enduring guardianship, which allows someone to make personal, health, and lifestyle decisions for you in case you become incapacitated.

Following a person’s death, the administration of their estate involves collecting and valuing assets, settling debts and taxes, and distributing what remains to the rightful beneficiaries. This can be complex, especially in the absence of a Will, and requires careful management to ensure fairness and compliance with the law.

Essentially, the area of Will and Estate Law is complex. As such professional legal advice is crucial. At AJB Stevens, we specialise in Will and Estate Law and provide comprehensive guidance and support to our clients.

There are many reasons why a person would want to contest a Will. The main reasons include being left out of a Will or if a person has been unfairly provided for. If you believe this has happened to you or a loved one then seek legal help as soon as possible.
Your legal team will help you establish:

• If the deceased was a close relative (parent, spouse guardian or dependant) who did not adequately provide for you.
• If the Will is not legally valid.
• If the deceased was not legally or mentally able to make a valid Will.
• If the deceased was pressured or threatened to sign a Will.

Challenging or disputing a Will in Australia is a legal process that individuals may pursue if they believe a deceased person’s Will does not accurately reflect their intentions or was improperly executed according to legal standards.

When it comes to disputing Wills, there are primarily two avenues: contesting a Will or challenging its validity on specific grounds. Contesting a Will involves claiming the estate because you believe that the Will failed to make adequate provision for your maintenance, education, or advancement in life. In New South Wales, for example, this is referred to as a ‘family provision claim’. You must first qualify as an ‘eligible person’ under the law to lodge such a claim.

Eligible persons typically include the deceased’s spouse, children, dependents, or in some cases, former spouses or individuals in a close personal relationship with the deceased. The court considers various factors when assessing these claims, including the claimant’s financial needs, the size of the estate, and the deceased’s obligations towards the claimant.

On the other hand, challenging a Will focuses on the legality and legitimacy of the Will itself rather than the fairness of its provisions. Grounds for challenging a Will include:

• Mental Capacity: Arguing that the deceased lacked the necessary mental capacity to understand the nature and implications of the Will at the time it was made. This could involve proving that the individual suffered from dementia, severe illness, or other conditions affecting their decision-making abilities.
• Undue Influence or Duress: Claiming that the Will was made under pressure or coercion, where the deceased was forced or subtly manipulated into making decisions that did not reflect their true wishes.
• Fraud: Alleging that the Will was tampered with or forged, or that the deceased was deceived about the nature of the document they were signing.

Both contesting and challenging a Will can be emotionally taxing and legally complex processes that require careful navigation through the intricacies of Australian law. Given the potential for family conflict and the need for a detailed examination of evidence, seeking guidance from experienced legal professionals is crucial.

At AJB Stevens, our expertise in Will and Estate Law enables us to provide comprehensive support to our clients, ensuring they understand their rights and options when considering the dispute or challenge of a Will. Whether through negotiation, mediation, or court proceedings, we are committed to advocating for our client’s interests and achieving a resolution that honours the true intentions of the deceased while respecting the legal rights of all parties involved.

Section 57 of the Succession Act 2006 (NSW) sets out strict criteria as to who is able to contest a Will under that Act. These people, in relation to the deceased, are:

• their spouse;
• their de facto partner;
• their child;
• their former spouse;
• a person who was, at any particular time, wholly or partly
• dependent on them;
• a person who is a grandchild of them or was, at that particular time or at any other time, a member of their household;
• a person who was living in a close personal relationship with them at the time of their death

Note that being eligible to make this claim does not mean that you will be successful. Success requires satisfying the court that there was not ‘adequate provision’ made.

When an individual passes away without a valid Will, intestacy laws come into play. These laws are in place to distribute the estate of the deceased according to a predetermined formula, which may vary from state to state.

These laws typically prioritise the closest family members such as spouses and children. However, there may be cases where the distribution under these intestacy rules does not adequately provide for all dependents or parties who had a close relationship with the deceased. In these cases, it is possible to contest the estate, even if there is no Will.

For example, the Succession Act 2006 (NSW) outlines the framework for dealing with estates in New South Wales when someone dies intestate (without a Will). Similar legislation exists in other Australian jurisdictions, each with its own rules regarding who is entitled to inherit under intestacy laws.

Despite these provisions, there are mechanisms within the law that allow for certain individuals to claim the estate if they believe that the intestacy rules do not fairly consider their needs or relationship with the deceased.

To contest an estate under intestacy, individuals need to demonstrate that they were financially dependent on the deceased or had a relationship with the deceased that would warrant provision from the estate. In some circumstances, this might include de facto partners, stepchildren, or even close friends and caregivers.

The courts will consider various factors when assessing such claims, including the nature and duration of the relationship, the claimant’s financial circumstances, and any contributions (financial or otherwise) made to the estate or the deceased’s welfare during their lifetime.

It’s important to note that contesting an estate can be a complex and emotionally charged process. The courts aim to balance the intentions of the intestacy rules—which distribute assets fairly and orderly—with the legitimate needs and expectations of those left behind. As such, individuals considering contesting an estate should seek specialised legal advice to understand their rights, the likelihood of success, and the potential implications of their claim.

At AJB Stevens, we have extensive experience navigating the complexities of Will and Estate Law, including cases of intestacy. Our team is equipped to provide comprehensive guidance and representation to individuals looking to contest an estate, ensuring they are fully informed and supported throughout the legal process. Whether through negotiation, mediation, or court proceedings, our goal is to achieve an outcome that reflects fairness and respects the relationships and contributions of all parties involved.

When you choose to work with AJB Stevens for your legal requirements, especially when it comes to Family Law or Estate Matters, you can expect a well-organised and compassionate process that will help you navigate through the complexities of your case with ease and professionalism.

Our approach is customised to offer you clarity and comfort as we embark on this legal journey together.

1. Initial Consultation and Case Assessment The first step when you make a claim with AJB Stevens involves an in-depth consultation with one of our top lawyers. This initial meeting is crucial as it allows us to understand the nuances of your situation thoroughly. During this phase, our primary goal is to assess the strength and validity of your case. We consider all relevant legal frameworks and precedents within Australian law that apply to your circumstances. This evaluation ensures that moving forward with your case is in your best interest and that you have a solid foundation for your claim.
2. Detailed Investigation and Information Gathering Our team dives deeper into your situation once we determine that your case has merit. This stage is characterised by comprehensive information gathering, where we collect all necessary documentation, evidence, and testimonies related to your case. Our lawyers work closely with you to ensure nothing is overlooked, covering financial documents, communication records, and other pertinent information that could strengthen your position. This thorough preparation is pivotal in building a robust case strategy.
3. Seeking Compensation through Negotiation With a well-prepared case, AJB Stevens then seeks compensation or resolution through negotiation. Our experienced lawyers employ strategic negotiation tactics to achieve the best possible outcome for you without resorting to court proceedings. This approach is often more time-efficient and less stressful, allowing for a resolution that meets your needs and objectives.
4. Navigating the Court Process Should negotiations not yield the desired result, AJB Stevens is fully equipped to guide you through the court process. This step involves filing the necessary legal documents, preparing for hearings, and representing you in court. Our expertise in Australian Family Law and Estate Law ensures that you are represented by skilled professionals committed to advocating on your behalf. Throughout the court process, we maintain open communication with you, providing updates and explanations to help you understand each stage of the proceedings.

With AJB Stevens, you are supported by a team of dedicated lawyers who are committed to ensuring the legal process is as straightforward and stress-free as possible. From initial assessment to detailed investigation, negotiation, and court proceedings, if necessary, our approach is designed to secure the best possible outcome for your unique situation within the framework of Australian law.

The time it takes to process a claim in Will and Estate Law in Australia depends on many factors related to the specific circumstances of each case. Generally, claims associated with Wills and estates can take one to three years to resolve fully. However, it’s crucial to understand that this is a broad estimate, and the actual time frame can be significantly shorter or longer based on several key factors.

The duration required to process a claim is primarily determined by the complexity of the estate. If the estate is larger or has assets distributed across multiple jurisdictions, the administration period may be longer. Similarly, if the estate includes complicated assets such as businesses, international properties, or significant investments, it may take additional time to assess and distribute these assets accurately.

Another critical factor influencing the duration of the process is the presence of disputes or challenges to the Will. Contesting a Will or disputing the distribution of an estate under intestacy laws can introduce legal proceedings that significantly extend the timeline. The nature of these disputes, the evidence required to support claims, and the availability of parties and witnesses for hearings can all add complexity that requires additional time to navigate.

Also, the legal and administrative processes’ efficiency plays a role. Delays can occur due to backlogs in the court system, the availability of legal professionals, or challenges in gathering necessary documentation and valuations. Each step in the process, from filing initial paperwork to obtaining probate or letters of administration through to the final distribution of assets, has its own requirements and potential for delay.

At AJB Stevens, we understand the importance of managing our clients’ expectations regarding the timeline for resolving their Will and Estate claims. Our approach is to provide a realistic estimate based on the specifics of your case while also making every effort to expedite the process where possible. Your appointed AJB Stevens lawyer will keep you informed throughout your case, offering updates on progress and any factors that may influence the timeline for resolution.

We are committed to ensuring you are well-informed and supported at every stage, with a clear understanding of the steps involved and how long they may take. Our goal is not only to achieve the best possible outcome for your claim but also to do so in a timely manner. If you want to discuss the specific details of your case, contact our team today and we’ll help.