Inheritance Claims and Contested Wills: An Overview
It’s like a scene from a movie. Grieving family members gather in a lawyer’s office. They’re all dressed in black. They’re there to hear the reading of their deceased loved one’s will. He was incredibly wealthy and even though he was also a little bit eccentric, there’s a mountain of expectation. Then the lawyer declares that the entire estate is to be left to the deceased man’s cat. There’s outrage and inconsolable sobbing.
The thing about movies is that there’s high drama to keep you watching. In reality, when it comes to deceased estates, this drama simply doesn’t exist. But you need to know your rights if you:
:: Have been left out of a will
:: Believe that you were entitled to more from a will
:: Believe that a will is invalid.
You also need to know what options are available to you to challenge the will, especially if the estate has been left to a cat.
How a will works
There are lots of strict rules when it comes to making a will. The purpose is to ensure that a person is making a will freely and without any unfair pressure from other people. For example, a person making a will (the testator) must:
:: Be at least 18 years old.
:: Understand that the effect of the will is to distribute their estate after their death.
:: Make a will in writing and sign and date it properly in the presence of witnesses (there is a procedure for this that must be strictly followed so that the will is valid).
Two of the most important elements of a will are:
- The beneficiaries. These are the people or organisations named in the will who will inherit the estate (or part of it). They may also inherit particular items, for example a piece of jewellery.
- The executor. This is the person who will be responsible for tracking down all the assets of the estate, paying all the debts and ensuring that everything is distributed to the beneficiaries and that the estate is finalised.
So when the testator dies, there’s no gathering of black-veiled hopefuls clutching their crisp linen handkerchiefs and dabbing at their fake tears. Things happen much more quietly than that.
The executor must apply to the Supreme Court for a grant of probate. This is basically a process in which the Court checks the will and decides that it’s legal and proper. The grant of probate gives the executor the right to deal with the testator’s estate.
Because probate is a complex process, executors often use probate lawyers to help them.
As part of the application, the executor must provide the will to the Supreme Court. This puts it on the public record and then anyone can go to the Court registry and ask to look at the will. If you wish to see the will and haven’t had any luck convincing the executor to provide you with a copy, you can ask the Court.
If the will is invalid, things become even more complicated. The estate may not be able to be distributed until the Court can work out what the testator’s wishes were. If the potential beneficiaries disagree about how the estate should be divided, there may be a trial and the Court will hear evidence so that it can decide what to do. This process could take months, or years.
If it’s not possible to work out the deceased person’s wishes, the Court may decide that they died intestate. That is, without a will. It would then appoint an administrator (similar to an executor) to carry out the orders of the Court about how the estate should be divided.
Sometimes, a person may have been left out of a will and believe that they are entitled to something from the estate. Or, they may have been included in the will but they believe they should have been given more from the estate. This is known as inadequate provision.
For example, the testator’s adult child lives on a disability pension. The adult child was left nothing while the other siblings inherited $200,000 each. The adult child could make a claim that the testator should have provided for them from the estate.
Or, the testator had always paid the school fees for her grandchildren. The testator didn’t make any provision for them in her will. The grandchildren may have a claim for inadequate provision and be able to secure payment of the fees until they finish school.
Often, these claims can be settled by agreement and there is no need to go to Court. But sometimes, the Court will have to decide if the parties can’t agree.
There is legislation that deals with inadequate provision and it allows only specific people to make a claim on the estate. They are:
:: The testator’s husband, wife or domestic partner.
:: A person who is divorced from the testator.
:: The testator’s child, dependent step-child or grandchild.
:: The testator’s parent, brother or sister (who can show that they cared for or financially supported the testator).
Working out whether you have a claim against a deceased estate is a complicated process. In a nutshell, you have to prove that you have been left without adequate provision for proper maintenance, education or advancement in life. You also have to prove that the testator had a duty to provide those things.
In working this out, current laws need to be considered with recent Court decisions. Because of this, it’s worthwhile consulting an experienced wills and estate lawyer as soon as possible after you become aware that you may have a claim.
It’s also really important to understand that you only have 6 months from the date that probate was granted to make a claim. So the sooner you speak to a lawyer, the better.
A lawyer will discuss all of your options with you, inform you of your rights, help you get a copy of the will, and most importantly, give you advice on how to proceed. A lawyer can also prepare and lodge your claim, gather all the necessary information and negotiate with the other parties. This can take a lot of stress out of the situation.
Contesting a will or making an inheritance claim is not a decision to be made lightly, but sometimes it’s the best course to make sure that the testator’s wishes are carried out and your rights are protected. Unlike what we see in the movies, it doesn’t have to be a situation loaded with drama and conflict. Quite often agreements can be reached without ever resorting to legal action.
But if your rich grandfather dies and leaves everything to Fluffy his Persian cat, it would be best to have us on the speed dial, just in case.
This article provides general information only. For advice specific to your needs, you should consult a lawyer.