Have you been unfairly left out of a Will?
Has a claim been made against an estate that you are involved in?
Then you need legal advice.
Estates are often challenged where there is reason to doubt the validity of the Will.
When this occurs, it is necessary for the Supreme Court of Queensland to determine the validity of the Will. The Court will consider whether the Will is the true Will of the deceased, made freely and without influence. Where the Court finds the Will to be invalid, the estate assets will not be distributed in accordance with the deceased’s wishes, but rather according to the rules of intestacy.
Estate disputes can also arise where the deceased did not make adequate provision in their Will for a particular person. An application for further and better provision from the estate of a deceased, known as a Family Provision Application, can be made to the Supreme Court of Queensland.
Those eligible to make an application include spouses of the deceased, children of the deceased and dependents who were wholly or substantially maintained or supported by the deceased.
There is no formula for any entitlement that a person should receive from an estate.
The Court compares the needs of the person who is making the claim with those of the other beneficiaries in order to determine whether there has been inadequate provision for their maintenance or support. When making this assessment, the Court usually looks at:
- the size of the estate;
- financial needs and health of the person making the application;
- the character and conduct of the person making the application toward the deceased;
- whether the deceased had a responsibility to provide for the person making the application;
- whether adequate provision has been made for the proper maintenance and support of the person making the application;
- any other relevant matters.
Where the Court finds that adequate provision has not been made for the person making the application, it will then determine what, if any, provision ought to have been made for the applicant.
If you are considering disputing an estate or you are the Executor and have reason to believe that someone else may dispute the estate, you should seek legal advice from us as soon as possible, as strict time limits do apply for Family Provision Applications.