Some beneficiaries believe they deserve more than what they received from a Will. So, they resort to estate litigation. While this creates conflict among family members and friends, concerned beneficiaries actually want to know whether the Will is the real thing or not.
“This is all I get?!”
“I think I deserve more than what my family members received.”
“Why is my sister included in the Will? She doesn’t deserve anything!”
“This doesn’t look right. I want to contest or challenge the Will.”
We’ve all probably heard these before when a beneficiary receives something in a Will. They question its validity or how it was written. Were there loopholes? Are there typographical errors? Did the Will-maker write it in a way that they would normally do?
That’s why estate litigation is available for people who have such questions about estate disputes. As our title says, it is a ticket to more inheritance (or, in some cases, less or no inheritance at all). With this in mind, such cases will vary. So, it’s important to stay informed with us!
Let’s learn more, shall we?
What Is Estate Litigation?
This process involves legal disputes that concern a deceased person’s assets. Such assets include, but are not limited to, cash, stocks, shares, bonds, automobiles, jewellery, art, and digital assets. It can also include claims for compensation due to actions that harmed the estate’s value.
As mentioned, estate litigation paves the way for further provision. However, people should not resort to this with greedy intentions. Beneficiaries should only use this in respect of the Will-maker’s intentions and aim to discover if the Will’s provisions are accurate and true.
A lot is on the line during estate litigation, especially if there are huge and valuable assets from the deceased. So, it’s important to seek legal advice so your best interests are protected.
How Can Family Provision Claims Help Me?
An eligible person can make a family provision claim if they want a share or a larger share from the deceased’s estate. But what makes you an eligible person to file such claims? You need to meet the following conditions:
| 1. Relationship with the deceased | – Wife or husband – Ex-wife or ex-husband – A de facto partner – Child – A dependent – A close personal friend |
| 2. Reasons for the claim | – You were left out of the Will – The Will did not provide adequately for you |
| 3. Court considerations | – The applicant’s relationship with the deceased – Applicant’s financial state – Disabilities and age – Applicant’s Character – Estate value – Contributions to the estate – Prior provisions and support – Any other law that applies – Other claims – Relevant matters related to the case |
To make a claim, you can follow these steps:
- First and foremost, seek advice from a lawyer! Don’t make a family provision claim during estate litigation alone, as this may backfire. Lawyers are the real deal when they deal with Will disputes and estate litigation.
- Secondly, your lawyer will help you prepare a summons along with an affidavit in the Equity Division of the Supreme Court. Make sure to also pay the filing fee
- Next, the Supreme Court will require you to attend mediation. Yes, your case won’t go straight to the court. Mediation will offer a space for the disputing parties to come to an agreement without court intervention.
- If all else fails, then the Supreme Court will list your case for a final hearing. The judge will decide on the Will’s final provisions.
Contesting vs Challenging a Will: Aren’t They the Same?
No, they’re not! To put it into perspective, a person challenges a Will if they question its validity. Did the Will-maker have the mental capacity to write it? Were they forced to write it against their will (undue influence)?
On the other hand, a person contests a Will if they want to adjust the estate’s distribution. They do acknowledge the Will’s validity, but believe they were inadequately provided for. A family provision claim is a way to contest a Will.
Whether a person wants to contest or challenge a Will, it will almost always lead to emotional conflict between family members. Some of them may argue to just let the provision be, while some will argue to review the Will again. After all, contesting or challenging a Will involves legal representation, which can bring more stress to the family.
But it wouldn’t hurt to review a Will, especially if there are obvious loopholes and inconsistencies, right?
Read our factsheet about contesting and challenging a Will here.
Spot the Signs of an Invalid Will During Estate Litigation
It’s important to know what makes a Will invalid before a beneficiary challenges a Will. You wouldn’t want to be on the short end of a stick because of a false estate claim. So, let’s see what kind of signs you can look out for with your lawyer before you challenge, and possibly contest a Will after.
1. The Will-Maker’s Age and Mental State
Will-makers must be over 18 when they write their first Will. Were they a minor when they wrote it? Then this could be a reason to challenge a Will. Some Will-makers may have had mental incapacities when they wrote their Wills. Such illnesses include dementia or Alzheimer’s, which can affect their ability to understand how to write a Will.
Will-makers can also write their wills under the influence of alcohol and drugs. Remember, Will-makers should be of sound mind when they write their Wills. Wills should not be written for fun or under undue influence, since this will help their beneficiaries in the long run.
If this happens, you can include an undue influence claim during the litigation process.
2. The Will-Maker’s Understanding of a Will
Will-makers should understand what a Will is and how it functions. It provides what assets they will give away to beneficiaries and even funeral instructions. A representative (the executor) will administer such assets to the beneficiaries. If an executor fails to act in the best interests of the beneficiaries, they can be removed.
Yes, it sounds like a lot to take in. So, Will-makers should understand the nature and extent of their property, and who will receive it.
3. Lack of Knowledge and Approval
Did the Will-maker sign the Will without reading it, or without having it read and explained to their witnesses? Such signatories are important in Wills since this validates everything that they wrote in their Will.
Was the will written in overly complex legal jargon that the Will-maker, given their background, would not have understood? Were there significant changes from previous wills that the will-maker might not have genuinely agreed to?
It’s important to ask these questions with your lawyer during estate litigation.
4. Failure To Comply With Proper Formalities
Wills are legal documents. They need to follow legal protocols, conditions, and requirements for it to be enforceable. Yes, the basics of Will writing include the Will-maker’s signature and what part of their estate beneficiaries will receive. However, there’s more to these requirements. Click here to read what makes a Will legally valid.
5. Internal Inconsistencies
Have you seen inconsistencies in how the Will was written? For example, the Will stated “I give my house to Barry” and in one clause it states “I give my house to Bary?”. As minor as this may seem, it can prove a Will’s invalidity during estate litigation.
Another inconsistency that a beneficiary can address in a Will is different or unusual language in the Will. If this is the case, the Will should have been translated into a language that readers and beneficiaries can understand.
Lastly, if the will doesn’t specify what happens to any remaining assets (residuary estate) after its administration, it can lead to partial intestacy.
Final Thoughts About Estate Litigation
To conclude, it’s important to review a Will to know their validity. Gather all original Wills if it was updated by the Will-maker throughout their life. Compare each Will with the others and find any unexplained changes. Make sure to also keep in contact with the executor of the Will since they are responsible for estate administration.
Claimants should act as quickly as possible since there are deadlines for lodging claims. In most cases, settlements occur before reaching court in estate disputes. So, you need to act before the settlement date happens.
Executors are typically the parties of the opposition who will rebut your claims against the deceased’s estate. More often than not, they are also ready with a legal team of their own. To add to such challenges, all states have specific laws around contesting Wills.
With all this in mind, you will need someone who knows how to investigate Wills, an ally who is a master at handling legal matters in such cases, and someone who will be with you from start to finish.
Our Mastery of Estate Litigation Matters
It’s difficult enough to lose a loved one, but to be inadequately provided for? Now, that just puts salt in the wound. You may want to make several claims, such as insurance claims or family provision claims. But hold your horses! Make sure you’re well-equipped with a lawyer who knows the ins and outs of the law.
Our Wills and estate planning lawyers at JB Solicitors can provide professional legal advice for you about the litigation process. We can handle any disputes relating to Wills and represent clients in any other family law matter. Our fixed fees can also help you find out the legal costs involved with estate litigation from the get-go.
Let us help you get the inheritance your family deserves with our help. Contact us today.
