Will Disputes and Contested Estates


If there's a dispute over my Will after I've died what assets can the Court deal with?

Wednesday, November 21, 2012

Holding an asset (e.g. a residential property) as a joint tenant means that when one joint tenant dies, the property will not form part of their estate but will pass automatically to the remaining joint tenant(s) by survivorship regardless of what the deceased person’s Will says.

However, in NSW, if a person held an interest in a property as a joint tenant and failed to sever that joint tenancy prior to their death, the person’s interest in that property can be treated by the Court in certain circumstances as part of their ‘notional estate’. This means that if family provision claim is made against the deceased person’s estate after they have died, their jointly held property may not be automatically protected and may form part of the estate for division amongst the beneficiaries and the person making the claim. If the Court was to make such an order, then the surviving joint tenant(s) would not obtain the benefit of the whole of the property.

Similarly, if a person holds an interest in an asset and transfers that interest for less than full market value, then that interest may also be treated by the Court as forming part of their ‘notional estate’ in certain circumstances.  

This part of the law is extremely complex. It is important to obtain legal advice if you are concerned about this issue. At Matthews Folbigg Lawyers Parramatta we can consider your asset ownership structures and provide estate planning advice to help reduce the risk of a family provision claim being made against your Will later down the track.

Contact a lawyer in our estate planning team today to discuss how your wishes can be implemented and create or update your Will in line with your best interests.

Phillip Brophy – phillipb@matthewsfolbigg.com.au or 9806 7490

How can I exclude someone from inheriting from me after I have died?

Tuesday, November 20, 2012

There are many reasons why you may want to exclude someone from inheriting from me after I have died.

Possible reasons may include:

-          remarriage;

-          competing interests – you don’t have enough assets to take care of everyone and wish to choose only a few beneficiaries;

-          estrangement – you don’t want to leave anything to family members who you have not been in contact with for years;

-          punishment – the person has done something you do not agree with;

-          bankruptcy concerns – the person or their business are at risk of becoming bankrupt;

-          family law concerns – you are worried that your intended beneficiary may have to give up their benefit as a result of a possible divorce or custody dispute;

-          Mental health concerns – the person is unstable or suffers from a mental disability;

-          Money management – the person is not responsible with their money;

-          making a bequest to a charity; or

-          Lifetime provision – you want to leave a benefit to younger children instead of older children you have already provided for.

Although your Will specifies who will receive your assets upon your death, the law in NSW allows the Court to vary a person’s Will in certain circumstances. To avoid a dispute over your assets, you need to carefully consider your options and the associated consequences.

The lawyers at Matthews Folbigg can provide you with comprehensive legal advice on how to draft or update your Will, create trusts and deal with superannuation for the benefit of your chosen beneficiaries. Contact a lawyer in our estate planning team today.


Matthews Folbigg Lawyers Parramatta

hillip Brophy – phillipb@matthewsfolbigg.com.au or 9806 7490

What are the time limits for bringing a family provision claim?

Tuesday, October 16, 2012

If you have been left out of a Will or believe that that the provision that has been made for you in a Will is inadequate, it may be possible to for the Court to change the Will.

However, strict time limits apply to the filing of such an application with the Court.

An application for a family provision order must be filed with the Court within 12 months of the person’s death.

If you make an application beyond this 12 month time limit, the Court may accept your claim if you can show sufficient cause.  Whether the Court will accept your claim or not is a matter for the Court to decide.  The Court’s permission for proceeding with an application which is filed with the Court after the 12 month deadline is not automatically given.

f you think you are eligible to make a claim or would like more information on this issue do not delay - contact Matthews Folbigg Lawyers today. Our estate planning experts can provide legal advice on Wills, Will disputes and challenging a Will.

Matthews Folbigg Lawyers, located in Parramatta
Phillip Brophy – phillipb@matthewsfolbigg.com.au or 9806 7490

I had a close relationship with someone and they left me out of their Will

Friday, October 05, 2012

Depending on the type of relationship, you may be eligible to dispute a Will or make a claim if you have been left out of a Will.

In NSW the law provides that the following people are eligible to ask the Court to change a person’s Will after that person has died:

- the husband or wife of the deceased person
- a de facto partner of the deceased person
- a child of the deceased person (regardless of the age of the child)
- a former husband or wife of the deceased person 
- a  grandchild of the deceased person who was at any time wholly or partly dependent on the deceased person
- a person who was (a) a member of the same household of the deceased at any time and (b) wholly or partly dependent on the deceased person at any time
- a person who was living in a “close personal relationship” with the deceased person at the time of their death

It is a matter for the Court to decide whether to change the Will or not – there are a range of factors that the Court is required to take into account in making this decision.

We can advise you on how those factors apply in your situation.

There are strict time limits for making a claim, so the sooner you can obtain legal advice the better.

If you have been left out of a Will and think you may have a claim, talk to a lawyer at Matthews Folbigg Parramatta. Our specialists provide legal advice in the area of Wills and deceased estates.

Contact us today:

Phillip Brophy: phillipb@matthewsfolbigg.com.au or 9806 7490



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