Will Disputes and Contested Estates

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Different Reasons to Dispute a Will

Monday, November 03, 2014

You may be entitled to dispute a will for reasons such as:

  • the deceased did not have the capacity to make a will;
  • the deceased was unduly influenced at the time of making the will;
  • the deceased has not signed the will or later made another will;
  • the deceased revoked the will; or
  • the will has been tampered with.

In addition, if you are an eligible person such as a child of the deceased and you have not receive an adequate proportion of the estate under the will, you may still be able to dispute the will or make a claim under family provisions.

If you would like to make a claim or dispute a will, contact the estate planning team at MatthewsFolbigg Lawyers Parramatta. We can provide you with specialised advise in estate planning, family provisions claims and for disputing a will. We also draft and update Wills, Powers of Attorney and Enduring Guardianship. Contact us to obtain legal advice.

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

P
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.

I
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


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