Will Disputes / Family Provisions

Will Disputes / Family Provisions

 

If you have been left out of a will or believe your share is unfair or inadequate, you should immediately find out whether you have a claim


When someone close to you dies, it’s always a stressful time. Sadly, an inheritance dispute can make a difficult situation even more challenging. In Australia, disputes over wills and estates are becoming increasingly common, largely because what constitutes a family is constantly changing and so diverse. This reality is bound to cause additional tension within families.

The good news is that, if you believe you have been left out of a will in error, or that your share of the estate is inadequate for your needs, we may be able to help you contest or challenge the will and obtain your fair entitlement.

However, you need to move quickly because these kinds of cases often have strict time limits.

We will use our legal expertise to help you

At Monaco Compensation Lawyers, we are experts in contesting and challenging wills.

Over the past 20 years, we have finalised thousands of claims for clients who believed they were unfairly treated in a will. Our lawyers are widely known in the profession for making successful family provision claims, ranging from small inheritances to multi-million dollar disputes.

Our legal team are also highly regarded both in Australia and internationally. In 2018, we were awarded Australian Compensation Law Firm of the Year in both ACQ5 Global Awards and in CorporateINTL Global Awards. In addition, in the AI 2018 Global Excellence Awards, we won Most Outstanding Australian Law Firm.

We are committed to getting the best possible result for you

We are also extremely committed to our clients.

If we believe you have a valid claim, we will always allocate sufficient time and resources to handle your case appropriately. This is because, in order to successfully contest or challenge a will, a lawyer needs to have an in-depth understanding of the issues in that particular case.  The difference between winning and losing a case often lies in the details.

We can help, no matter where you live

It is important to understand that the law relating to wills and estates in Australia is state-based. This means that it differs slightly depending on the state or territory where the deceased lived and/or owned property. As a result, you need a lawyer who is an expert in the law of wills and estates in the state or territory where you will make your claim. We are well positioned to help you to contest or challenge a will no matter where you live, because we are a national firm with offices across Australia.


How much will contesting or challenging a will cost if you retain us as your lawyers?

Free initial consultation

We offer a free initial consultation where we meet with you and evaluate whether your claim is viable from a legal perspective.

Alternatively, you can call us on 1800 769 665 and our lawyers will provide you with free initial advice over the phone. Most importantly, you will speak to one of our legal experts the first time you call our office.

No-Win – No-Fee Guarantee

Our No-Win – No-Fee Guarantee is designed to assist you if your current financial circumstances might otherwise deny you access to legal representation. The scheme allows for payment of our legal costs to be postponed until after the successful conclusion of your claim.

If, after meeting you and evaluating your case, we believe that you have a valid claim, we will offer you a No-Win – No-Fee contract. It is a simple and easy-to-understand document that we will provide you before we start work on your claim. We will also give you an estimate of our legal fees before any work commences.

Would you like a free initial consultation with a lawyer who is an expert in inheritance disputes?
If so, call us now on 1300 769 665.

Frequently Asked Questions

If you have been left out of a will and you believe this is unfair, you should take the following steps as soon as possible:
  • Step 1: Contact the executor and/or the solicitor acting for the estate and try to obtain a copy of the will.
  • Step 2: Start gathering evidence about your relationship with the deceased.
  • Step 3: Obtain legal advice as soon as possible. There is a limited time frame in which to lodge a claim, as there is always a risk that the deceased’s estate could be sold or transferred to someone else.
Would you like to talk to a lawyer who is an expert in contesting and challenging wills? If so, call us now on 1300 769 665 for a free initial consultation.
If we take on your case, we will manage the entire claims process for you.  

  • Step 1: You call us or meet with us, explain the nature of your claim, and we tell you whether we believe you have a valid legal claim to contest or challenge the will.
  • Step 2: If we believe your claim is valid and agree to take on your case on a No-Win - No-Fee basis, we will arrange an appointment at one of our offices. If it is difficult for you to travel, we can arrange a home visit.
  • Step 3: We identify the size and nature of the estate.
  • Step 4: We prepare all the necessary court documents.
  • Step 5: We obtain all the necessary evidence, including any witness statements or affidavits confirming your relationship with the deceased.
  • Step 6: We prepare and file court documents and conduct your claim in the court in a way, which ensures that the dispute is finalised in the shortest period of time and the greatest advantage to you.
  Throughout this process, we will communicate with you in a language you can understand and support you at every stage of your claim, including during settlement conferences, mediations and court hearings.
Everyone has the right to decide who will inherit their assets after they die. A will is a person’s formal record of their wishes regarding the disposal of their assets. As a general rule, the law respects a person’s right to dispose of their assets as they wish after their death. However, there are laws that allow eligible people to contest or challenge a will, or to make a claim against a deceased estate, in certain circumstances.

What is ‘contesting’ a will?

‘Contesting’ a will refers to the situation where a person uses the family provision legislation in each state and territory to question the distribution of assets in a will. In this way, contesting a will can best be understood as a ‘contest’ among a deceased person’s family members regarding the proceeds of the deceased’s estate. In simple terms, a family provision claim is when you make an application to a court for a portion, or a larger portion, of a deceased person’s estate on the grounds that you haven’t been ‘adequately provided for’.  

What is ‘challenging’ a will?

‘Challenging’ a will refers to challenging the validity of a will itself. The reasons for challenging a will include issues such as:

  • Undue influence
  • Fraud
  • Forgery
  • Lack of mental capacity.
Wills can also be challenged if they don’t meet the formal requirements for making a valid will.
In each Australian state and territory, there is legislation that enables you to contest a will and make what is known as a family provision claim.

What is the purpose of the family provision laws?

The family provision laws enable the courts in each state and territory to interfere if they believe a will is unfairly causing hardship to a person associated with the deceased. In these cases, the court will override the will and grant a proportion of the deceased person’s estate to an ‘eligible applicant’.

How do the family provision laws in each state and territory differ?

While the basic principles enabling you to make a claim are similar, there are some important differences between the laws in each Australian state and territory in terms of:

  • Who is entitled make a family provision claim
  • The criteria used by the courts to assess whether they will recognise your claim and award you a share of the estate.

How do you know which is the correct state in which to make your family provision claim?

  The law that applies to a particular family provision claim will depend on the state or territory in which the deceased person was residing when they died and/or where they owned either real estate or personal property.   A lawyer will be able to tell you where you should make your family provision claim.

If you are thinking of making a family provision claim, do you need to get legal advice?

The law relating to family provision cases is complex.

So, if you are thinking of making a family provision claim, you will need a lawyer to:

  • Identify the state or territory where you should make your claim
  • Tell you whether you are eligible to make a claim
  • Advise you on whether your claim is likely to succeed
  • Navigate you through the claim’s process.
  In addition, strict time limits apply to family provision claims, so you should get legal advice as soon as possible.

For a free initial consultation to find out whether you can make a family provision claim, please call us on 1300 769 665.

If a person dies and leaves a property, the relevant law will be the law of the state in which the person died and/or left the property.

Even if you live in a different state from the deceased person, we can help you.

At Monaco Compensation Lawyers, each of our offices across Australia has a team that specialises in contesting and challenging wills, which means we are ideally placed to assist in these kinds of cases.

If the deceased person didn’t leave a will, this is known as dying ‘intestate’.

In these cases, the deceased’s property is distributed according to rules set down in state-based legislation.

It is important to understand that these rules don’t take into account the individual circumstances of any potential beneficiaries of the deceased, with the result that there may be an unfair distribution of the deceased person’s assets.

For a free initial consultation on a situation where someone close to you has died without leaving a will, please call us on 1300 769 665.

In NSW, if you believe that you have been left without adequate provision from a deceased estate, you may be able to contest the will and make a family provision claim.

The concept of ‘adequate provision’ is complex and difficult to define.

For this reason, it is important to get legal advice on whether you have received ‘adequate provision’ under the terms of the deceased’s will, and whether or not you may have a valid claim under the law for additional provision.

Who can contest a will in NSW?

In NSW, in order to contest a will you must:

  • Be an ‘eligible person’
  • Prove that the deceased person had a legal obligation to ‘adequately provide’ for you in their will and has failed to do so.

Who is classified as an ‘eligible person’ under the law in NSW?

In order to be considered by the court as an ‘eligible person’, you need to be the deceased person’s:

  • Spouse
  • De facto partner
  • Former spouse
  • Child
  • Stepchild
  • Foster child

In addition, an ‘eligible person’ may be someone who was:

  • Wholly or partly dependent on the deceased person
  • A member of the deceased person’s household at the time of their death
  • A person with whom the deceased person was living in a close personal relationship at the time of their death.

What issues do the courts in NSW consider when determining whether you may have a valid family provision claim?

In order to decide whether you have a valid family provision claim, the court may consider:

  • Your relationship with the deceased person
  • The obligations or responsibilities the deceased person owed to you
  • The value and location of the deceased person’s estate
  • Your financial circumstances, including your current and future financial needs
  • Whether you are financially supported by another person
  • Whether you have any physical, intellectual or mental disabilities
  • Your age
  • Whether you made any contribution to increase the value of the estate
  • Whether the deceased person already provided for you during their lifetime or from their estate
  • Whether the deceased person provided you with maintenance, support or assistance
  • Whether any other person is responsible for supporting you
  • Your character
  • If you are an Aboriginal or Torres Strait Islander, whether there is any applicable customary law
  • Any other claims on the estate
  • Any other matter the court considers as relevant.

Are there any time limits on family provision claims in NSW?

In NSW, if you’re an ‘eligible person’, your application must be made to the court within 12 months of the deceased person’s death. However, the court may make an exception in certain circumstances.

For a free initial consultation to find out whether you can make a family provision claim in New South Wales, please call us on 1300 769 665.

MCL is one of Australia’s leading law firms in the field of Will Disputes / Family Provisions. We are confident in our abilities. Read about us here.  That is why we provide a ‘No Win No Fee Guarantee’ to all of our clients. This means that you will only need to pay us for our work if and when your claim is successfully finalised.
At MCL you will have your own lawyer, who will always be available to answer your questions and provide advice in relation to your claim.

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