Will Disputes

Wills can be disputed for a number of reasons. If the document is fraudulent, fails to comply with the requirements of a Will or if the Will-maker did not have mental capacity at the time the Will was made, the Will might be set aside entirely. Similarly, if the Will-maker was coerced into signing the document or was under “undue influence”, there could be grounds to dispute the validity of the Will. Sometimes a Deceased person left multiple Wills, and there is disagreement about which of them should be enforced.

Claims for additional provision

Frequently, claims can arise when a partner, child or other individual who should have been provided for does not receive sufficient provision, or in some cases, receives nothing at all. A claim for provision from an Estate can be made when a person (“the claimant”) is entitled to more from the Deceased’s estate than the Will provides. This is commonly known as a “testator’s family maintenance” claim or a Part IV claim.

In determining whether a Part IV claim will be successful, the Court must be satisfied that the Deceased had a moral duty to make adequate provision for the proper maintenance and support of the claimant, and that the distribution of the Deceased’s estate fails to do so.

Additionally, The Court will assess the claimant’s individual circumstances and weigh them up against the other beneficiaries’ individual circumstances. In doing so, the Court will also take into account multiple factors including the nature of the relationship between the claimant and the deceased, the contribution of the claimant to the deceased and the estate, and the financial resources of the claimant. This includes the claimant’s earning capacity and the financial needs of the person at the time of the hearing and foreseeable future, and whether the claimant is capable of providing adequately for his/her own proper maintenance and support.

A claimant only has 6 months from the date of the Grant of Probate to issue a testator’s family maintenance claim, so if you believe that you have grounds for further provision from an Estate or if you are opposing a claim by claimant, you need to obtain advice from an experienced Will dispute lawyer without delay.

To arrange an obligation-free consultation with one of our experienced Will dispute lawyers, please call us on 03 9870 9870.

 

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Amanpreet Mintoo

Telephone (+61 3) 9870 9870
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