Claims against Wills and Estates

A will-make (testator) is entitled to give away his assets on his death to such beneficiaries as he wishes.  An executor or administrator is bound by law to distribute the assets of the deceased in accordance with the Will or in the event of Intestacy (no Will) the applicable State Law.

It is becoming more frequent however that claims against deceased estates are being made by persons who believe that they have been overlooked or inadequately provided for from the assets of the deceased.  Under the Family Provision Act 1969 (ACT) or, The Succession Act 2006 (NSW), if a claimant can establish that they are an eligible person and that the deceased has not made proper and adequate provision for them the Court can make an award in their favour.  The award is based on the claimants needs, taking into account their financial position for their maintenance, education or advancement in life.  If a claimant is successful the usual costs order is that their legal costs including barrister’s fees are paid from the Estate.

It is important to note that claims must be lodged within certain time periods from the date of death as set out in the relevant State law.

Contested Will disputes are complex issues and stressful to family members of the deceased.  Often claims can be negotiated without the necessity of a Court hearing but these negotiations must be approved by the Court.

How can we help?

• By acting as a representative of the Estate of the Deceased OR on behalf of a potential claimant.
• By establishing the eligibility of the claimant;
• By advising the potential success of a contested claim;
• By instituting appropriate proceedings, if warranted; and
• By negotiating a suitable resolution of the matter.

Enquiries

Michelle Smee E:
Kim Twohill E: