Inheritance Dispute Lawyers Melbourne

Inheritance disputes often arise where a will is poorly drafted and either fails in whole or part resulting in intestacy or partial intestacy.  In other words it is death which affects the transmission of property whether by will or partly by will or where there is no will.  Irrespective whether there is a whole or partial intestacy the distribution of the estate is governed by statutory rules covering the intestate distribution.  Although this scheme of arrangement is designed to assist relatives, that are potential beneficiaries of the deceased, it may run counter to their true intentions.  Basically the law identifies the order of preference starting with the deceased's family which are most closely related to them.  The problem may be if the deceased's true intentions were to be given effect there may be some relatives who would be excluded for particular reasons.  There are many cases where people die childless and have no rapport with their parents, siblings, nephews and nieces, grandparents, uncles and aunts and cousins.  Essentially an artificial statutory order has been set up to facilitate the administration and distribution of the estate designed to cover all situations but it does this imperfectly in many cases.  Why would anyone wish to have their property distributed to family with whom they have nothing in common and perhaps don't particularly like?  It is not uncommon to find in families that some members may be estranged or do not get on or have lost contact with the deceased yet here they are about to receive a windfall which they never had in their contemplation given their particular circumstances.  Apart from this hardship may result from the application of the rules of intestacy leading to claims under the Family Provision Legislation.

Wills which are drafted by persons other than lawyers are often unclear which means that the executor or a party interested in the estate may have to apply to the court to determine what were the deceased's true intentions.  Sometimes wills drafted by the uninitiated may contain mistakes and while some can be rectified, others cannot.  When this occurs the will may fail as there may be an intestacy which will totally circumvent what the deceased's true intentions were, as persons will be introduced as beneficiaries who were never in their reasonable contemplation of being so when the deceased was alive.

No one should die intestate and everyone over the age of 18 should make a will.  Nationally, approximately 10% of all persons above the age of 18 do not have a will and in some states the percentage is much higher.  Everyone should have a will because everyone needs to have a say in the way in which their estate is distributed rather than relying on a fallback legislative scheme which may produce a result which is neither fair nor reasonable.  Essentially the aim of the legislation is adequate distribution amongst a set class of individuals, which is imperfect, as it does not take into account individual circumstances.  The cost to draft a will is a small investment in the future which produces the desired outcome required by the maker at little personal expense or inconvenience.  No lawyer will ever get rich drafting wills so avail yourself of this opportunity.

Contested Wills  ~  Get Proper Advice!

It should be noted that where a valid will has been made it us unlikely that it will be overturned.  Most of the problems involving contested wills depend upon whether the document which purports to be the last will and testament of the deceased is in fact valid.  Essentially the will can be attacked on the following bases: 

1. it was not the last will and testament of the deceased; 
2. it does not constitute a valid will as the requisite formalities have not been followed;
3. the deceased lacked the necessary mental capacity to make a will;
4. it was altered after it was signed;
5. it was procured by undue influence or fraud; or
6. it was revoked.

In all such cases use the services of a competent solicitor to obtain proper advice.

Estate Disputes  ~  Make proper provision!

Apart from the matters referred to above a will may be attacked under the Family Provisions Act 1982 NSW to remedy a situation where dependents believe they have not been provided for.  The Act enables an eligible person to apply for a share or a greater share of an estate, however they must establish need and prove that the testator did not make adequate provision for them in the estate for their maintenance, advancement or education in life.  Basically the eligible person is normally concerned with questions of the reasonableness of provision.  Eligible persons are:

• The deceased's spouse at the date of death;
• Someone with whom the deceased was living in a domestic relationship;
• A child of the deceased person;
• A former spouse of the deceased person;
• A dependent of the deceased, which may include persons related or unrelated to the deceased, including foster children and persons in a same-sex relationship.

Where an order of the court is being sought to change a will, the court will address whether:

1. The eligible person has been left without adequate provision for their proper maintenance, education and advancement in life; and
2. If yes, what provision if any should have been made out of the estate to assist that person?

Technically all claims by an eligible person under the Family Provisions Act 1982 should be made within 18 months of the date of death of the deceased person.  Exception is only available with leave of the court in very limited circumstances.  Realistically all claims should be made well within time to overcome the possibility of the estate having been distributed otherwise the costs to deal with this will be substantial.

Contact us now for Fast, Accurate and Timely legal advice

Phone LAC Inheritance Dispute Lawyers Melbourne on 1300 734 638 or send us an email.