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Contested Estates

If a person dies with a valid Will in place, his or her estate is usually distributed according to their wishes – as you would expect.

We should emphasise that most estates are largely uncontested or perhaps have only a few issues which can be resolved once the parties come to understand the legal principles that apply. An experienced Estate Lawyer can help in this regard and in the process avoid unnecessary cost and misunderstanding

Estates can be contested and claims can be made against the estate in certain circumstances.

There are three main types of claims:

1. There is a Will but someone has been (or feel that they have been) left out of a Will unfairly, or not adequately provided for.

The “someone” must fall into the category of ‘eligible persons’ as defined in the Succession Act 2006 to make a claim on this basis.

‘Eligible persons’ basically are limited to spouses (both married or de facto) at the time of death, child (minor or adult), a person who was at any particular time wholly or partly dependent on the deceased, a grandchild who at some time was a member of the household of which the deceased was a member, or a person with whom the deceased person was living in a close personal relationship at the time of the deceased’s death and a former spouse.

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Can I include my superannuation in my Will?

Your superannuation can be one of your largest assets and accordingly it is important that your estate plan reflects your wishes on how you want this to be distributed after your death. Unlike your other assets, your superannuation is not usually covered by your Will. The reason for this is that your super is held in trust for you by the Trustee of your super fund.

This means that you should consider the different options available to you to ensure your superannuation is distributed in accordance with your wishes. It is always advisable to seek advice from an estate planning lawyer on which option will be best suited to your needs.

One potential option that you may wish to consider is making a binding nomination. A valid binding nomination creates a legally binding instruction on the Trustee of your super fund to distribute your super to the beneficiary or beneficiaries that you nominate, usually dependants or your estate.
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Is my sibling entitled to more inheritance than me?

In some circumstances, there are actions that you might be able to take if you disagree with the distribution of the estate. These are commonly bringing a will dispute or contesting a will through a family provision claim.

An unequal distribution might not have been intended by the testator of the will. A will dispute or challenge can be brought by you, if you have standing. See our previous blog HERE on standing and non-family members disputing a will for more information.

One example of this is Hobhouse v Macarthur-Onslow [2016] NSWSC 1831. The deceased, Lady Dorothy Wolseley Macarthur-Onslow, executed a will in 1988 which provided for an equal distribution of her estate between her two children; Lady Hobhouse, the plaintiff, and Mr Macarthur-Onslow, the defendant. In 2002, Lady Macarthur-Onslow was being treated for dementia. In 2004, she executed another will, which was to be the final one before her death in 2013. The effect of the second will was to permit Mr Macarthur-Onslow control to distribute a substantial portion of the property of the deceased, including to himself. The plaintiff initiated a will dispute on the basis of a lack of capacity of her mother to execute the will.
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Can a non-family member initiate a Will dispute?

Not everyone can initiate a will dispute. A person intending to bring an action for a will dispute must meet the requirement of standing.

A person is considered to have standing where he or she has an interest in the estate of the deceased. A person who may satisfy the requirement of standing might include a person who was entitled to share in the estate under the valid will preceding the disputed will.

However, even where a person may be unable to dispute a will due to their lack of standing, they may be able to contest a will.

One example of this is where a non-family member is eligible to apply for a family provision order under the Succession Act 2006 (NSW). Non-family members in this example can include dependents, household members and people with close personal relationships with the deceased person.

Popescu v Borun [2011] is an example of where two non-family members, Ms Popescu and her son, Mr Vedder, were not provided for in the will of Dr Borun, the deceased, and successfully obtained family provision orders for property and money.
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Initiating a Will Dispute due to Mental Capacity

Whether the person who made the will had the requisite mental capacity is one of the grounds for initiating a will dispute.

Mental capacity is called ‘testamentary capacity’ in the context of wills and is required for a person to make a valid will. The test for mental capacity comes from Banks v Goodfellow (1870), which requires a person making a will to:

  • understand the nature of the act and its effects;
  • understand the extent of property of which he or she is disposing;
  • be able to comprehend and appreciate the claims to which he or she ought to give effect and that no disorder of the mind would bring about a disposal of it which would not have been made otherwise.

Should a person fail to meet these requirements at the time the will is executed, they will lack the requisite mental capacity. A will made by a person lacking mental capacity is void.
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I don’t have a Will: what are the consequences?

Without creating a Will or contacting an Estate Planning Lawyer to assist in creating a Will, your estate may be inherited by people you may not wish to benefit from your death. According to the Succession Act (2006) The hierarchy for relatives receiving the estate is as follows:

  • Spouse
  • Children of the deceased
  • Parents
  • Brothers and Sisters
  • Grandparents
  • Aunts and Uncles
  • First Cousins

This list is exhaustive and the estate will be provided and divided to the next available relative category. For example, if you don’t have a spouse or children, your estate will be divided amongst your parents, and if no surviving parents, your brothers and sisters equally, and so on.

If you are still legally married to your spouse, your estate will be passed onto your legal spouse regardless of whether you have separated or not. A ‘legal separation’ is not sufficient to prevent an ex-spouse from receiving a benefit from your estate.
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How to Choose the Right Executor

One of the most significant aspects of effective estate planning is choosing the right Executor. Your Executor is the party responsible for managing the administration of your estate and the distribution of your assets to the beneficiaries in accordance with your Will. As the obligations of your Executor will vary depending on your Will, it is important to discuss with an estate planning lawyer the precise scope of what your Executor will be required to do.

A number of different factors will influence your decision when choosing an Executor and it is important that this decision should be regularly reviewed. Generally, this is something you should reconsider each time your Will is updated.

The first step is to review if the number of appointed Executors remains suitable. If you are seeking to appoint more than one Executor, keep in mind that any disputes between your Executors will likely have a detrimental effect on the administration of your Estate by costing the estate time and money. Speaking with an estate planning lawyer will provide you with guidance in relation to the appropriateness of appointing multiple Executors.
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Are you eligible to contest a Will

Are you eligible to challenge a will?

Contesting a will can be complex, confusing and is subject to strict time constraints. A will lawyer can assist you to understand the process and your eligibility to contest a will in a time of grieving.

A will can be contested before or after there has been authorisation for the executor to manage the estate, known as a grant of probate. It is simpler to contest the validity of the will before the executor starts to administer and distribute the estate, but is still possible after this has started.

So what are you actually contesting when you are contesting a will?

When you are contesting a will you may be challenging the validity of that will itself. A will lawyer can assist you to determine what you are contesting, but often contests include undue influence, fraud, forgery, or a lack of testamentary capacity.

On the other hand, you may be making a claim against the estate on the basis that you have not been adequately provided for, or not provided for at all.  This is often called a ‘family provision’ claim.
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