By making a Will, you are protecting your loved one’s interests and freeing them from emotional and financial worries at a time of distress and bereavement.
Types of Estate Disputes
There are 3 main types of disputes involving deceased estates:
- Challenging the validity of a Will.
- Claiming further provision from an estate.
- Challenging a transaction.
1. Challenging the Validity of a Will
If the deceased person did not have mental capacity (“testamentary capacity”) at the time they made their Will, the court may declare the Will to be invalid. Medical and other evidence will be needed to establish the lack of capacity.
If the deceased person was unduly influenced, or placed under duress, to make their Will in a particular way (e.g. to make a gift to a particular person), the court may declare the Will to be invalid.
If the Will is declared invalid, then the previous Will becomes the operative Will. If there was no previous Will then the person is deemed to have no Will, and in that event the estate will be distributed under the laws of intestacy.
2. Claiming Further Provision from an Estate
This is commonly referred to as a “Family Provision” claim. You may hear lawyers refer to this type of claim as an “FPA” (meaning “Family Provision Application” or a “TFM” (meaning “Testator’s Family Maintenance”).
If the deceased person had a spouse (including de facto), child/ren (including adult child/ren and step-child/ren) or certain other categories of dependant/s, then the law says that the deceased person had a duty to provide for them in his/her Will in the manner of a “prudent and caring” or “just and wise” spouse/parent/provider.
If the distribution under the Will does not adequately provide for their needs for “maintenance and support,” then they are entitled to take court action to seek further provision from the estate. The court can then override the Will and make an order that they receive further provision from the estate.
What is “adequate provision” depends on the circumstances of each case and will depend on many factors, such as:
The size of the estate.
The number and type of claims against the estate.
The financial position of each of the claimants and beneficiaries.
Whether each of the claimants and beneficiaries had a good relationship with the deceased.
The following time limitations apply in Queensland:
Within 6 months after the date of death, the claimant must notify the executor that he/she intends to claim further provision from the estate.
Within 9 months after the date of death, the claimant must commence court action to claim further provision.
These time limits can be extended by the court in exceptional circumstances. If you are the executor/administrator of the estate, we can represent you to respond to a claim for further provision. All the legal fees will ordinarily be paid by the estate.
3. Challenging the validity of a Will
There may be occasions when a Will could be challenged because the person either did not have mental capacity to make a Will or he may have been unduly influenced by a person to give away property.
If the Deceased person did not have mental capacity to make a Will or was unduly influenced to make certain dispositions of property and was placed under duress the Court may upon Application with supporting medical evidence and other circumstantial evidence declare that the Will is void or the provision in the Will is void. In such an event, the property will return to the Estate to be administered or it may be declared to be an intestate estate which means that the provisions will apply of disposition of property under Intestacy Rules. Prescribed by the Uniform Civil Procedures Act and the Succession Act.