Inheritance Claims
Righting the wrongs
Generally a Will is valid and acceptable under the Wills Act 1936 if it is in writing, dated and signed by the deceased and 2 adult witnesses. A Will can be contested in 2 major ways. In both instances the Supreme Court is called upon to vary what was, on the face of it, the clear intention of the deceased.
Assuming there was testamentary capacity at the time the Will was made, there is no issue of undue influence and the Will is drafted clearly then the substance of the Will can be contested. This is achieved pursuant to the Inheritance (Family Provision) Act.
This Act states that a person is entitled to claim the benefit of the Inheritance (Family Provision) Act if they have been left without adequate provision for their proper maintenance, education or advancement in life. The Supreme Court may order such provision as it thinks fit out of the assets of the estate of the deceased.
Testamentary capacity of the deceased
- Dementia
- Schizophrenia or paranoia
Undue influence or pressure
- Usually a family member or from people close to the deceased
- Difficult to prove
The interpretation of the Will itself
- Ambiguous terms
- Unclear intentions
Never leave a claim too late. If an apparent valid Will is located and an executor applies for a grant of Probate it might be too late to complain about the validity of that Will afterwards.
If a grant of Probate has not been made then a caveat should be entered at the Probate Registry preventing a grant of any form being made. This will allow time for further investigations and negotiations to support the position of invalidity.
The Supreme Court takes into account the age, health, mental capacity, home surroundings and general environment in which the deceased was living to make an assessment as to whether the Will is valid or not.
Medical evidence is usually called from a doctor to confirm or qualify the mental capacity of the deceased and whether they could understand what they were reading and signing.
What you own and how you own them is critical in professional estate planning.
Do you own your property as joint tenants?
Did you know that an asset owned in joint tenancy does not pass to your estate upon death?
Are there assets in a Family Trust?
Did you know that assets held in trust cannot be gifted in your Will upon death?
Do you own your property as joint tenants?
Did you know that an asset owned in joint tenancy does not pass to your estate upon death?
Are there assets in a Family Trust?
Did you know that assets held in trust cannot be gifted in your Will upon death?
Binding and Non-Binding Death Benefit Nominations in your Superannuation Fund need to be explored and discussed to achieve sound estate planning.
If you have separated from your spouse they may still be entitled to claim from your Super Fund unless it is dealt with effectively.
Appointing your young children as beneficiaries may not result in your desired outcome should you die.
If you have separated from your spouse they may still be entitled to claim from your Super Fund unless it is dealt with effectively.
Appointing your young children as beneficiaries may not result in your desired outcome should you die.
You cannot forget about your debts!
What is the tactic for payment on your death? Will you leave debts behind for loved ones to pay?
How will your family survive without your income after your death?
A clear and precise strategy should be engaged.
Contact us for more information
Moral Obligation
Guardians of infant or young children…who should you appoint and should they receive financial consideration?
Guardians of infant or young children…who should you appoint and should they receive financial consideration?
What are the varying needs of individual family members?
Domestic Partnership definitions…getting married in the near future…just divorced?
The threat of an Inheritance Claim is always present!
Small issues such as paperclip marks, a Will that has been re-stapled or small imperfections can be easily explained, but will need to be explained before a grant of Probate is issued.
If the deceased made additional marks on the Will after it had been signed may require an order from the Supreme Court to allow the grant to be made.
The damage to the Will may be so great that the Supreme Court will assume that it was intended to be revoked, evidence will be required to rebut that presumption and obtain a grant of Probate on that Will.
Spouse or domestic partner
A domestic partner is someone who, at the date of death of the deceased, was living with the deceased in a close personal relationship and had done so for 3 continuous years or have a child together.
A domestic partner is someone who, at the date of death of the deceased, was living with the deceased in a close personal relationship and had done so for 3 continuous years or have a child together.
A person who has been divorced from the deceased
A divorced person may need to show how they have been left without adequate provision but they are not excluded from the application of the Act.
A divorced person may need to show how they have been left without adequate provision but they are not excluded from the application of the Act.
A child or grandchild of the deceased
This definition does not include step-children of the deceased, the step-relationship with the deceased ends on their death and no claim may be made.
This definition does not include step-children of the deceased, the step-relationship with the deceased ends on their death and no claim may be made.
A child of a spouse or domestic partner of the deceased being a child who was maintained wholly or partly by the deceased immediately prior to their death
This definition may include step-children in some circumstances but would usually only apply if those children where very young and had substantial need.
This definition may include step-children in some circumstances but would usually only apply if those children where very young and had substantial need.
A parent or sibling of the deceased
In order to succeed a parent or sibling of the deceased must show that they cared for or contributed to the maintenance of the deceased during their lifetime.
In order to succeed a parent or sibling of the deceased must show that they cared for or contributed to the maintenance of the deceased during their lifetime.
Need of the applicant
The term need is applied in a relative sense by the Supreme Court and is not limited to immediate need. Future contingencies will be factored in such as future expenses, potential earnings, health and so on.
The size and value of the estate are also relative to the need of an applicant. The test of need in an estate over $1,000,000 would be different from the test of need in an estate of $500,000.
The term need is applied in a relative sense by the Supreme Court and is not limited to immediate need. Future contingencies will be factored in such as future expenses, potential earnings, health and so on.
The size and value of the estate are also relative to the need of an applicant. The test of need in an estate over $1,000,000 would be different from the test of need in an estate of $500,000.
Class of the applicant
An adult child will be treated differently by the Supreme Court to a minor child or even a spouse of the deceased.
There is no single rule to cover all examples and an adult child may have significant need and be successful as against another adult child or spouse of the deceased.
An adult child will be treated differently by the Supreme Court to a minor child or even a spouse of the deceased.
There is no single rule to cover all examples and an adult child may have significant need and be successful as against another adult child or spouse of the deceased.
Conduct of the Claimant
An applicant may disentitle themselves from being able to claim the benefit of the Act if they have acted so poorly towards the deceased that they do not deserve any benefit or windfall due to their behaviour.
Long term estrangement is not necessarily a barrier to success, that is particularly so if the estrangement/distance was caused or continued by the actions of the deceased themselves.
An applicant may disentitle themselves from being able to claim the benefit of the Act if they have acted so poorly towards the deceased that they do not deserve any benefit or windfall due to their behaviour.
Long term estrangement is not necessarily a barrier to success, that is particularly so if the estrangement/distance was caused or continued by the actions of the deceased themselves.
It is imperative that an Inheritance Claim is brought within 6 months of the date of the grant of Probate or Letters of Administration. At the expiration of that 6 month period, any claim will be limited to the assets and value that remains within the estate, which may be NIL.
The time limit may be extended by the Supreme Court but early action is the best way to ensure protection.
Written notice of your intention to make a claim against a deceased estate must be drafted with great care and skill, preferably by a solicitor. You may inadvertently reduce the time limit within which the executor may distribute the estate without recourse.
The costs involved in Court litigation usually put a lot of people off making a claim or even seeing a lawyer.
A lot of people still believe that if you win your case the other side will end up paying all of your legal costs, this is not strictly correct.
Is this the view held in estate litigation?
A lot of people still believe that if you win your case the other side will end up paying all of your legal costs, this is not strictly correct.
Is this the view held in estate litigation?
Decisions made in Inheritance Claims cases involve a discretionary judgement of a very broad kind made by reference to the circumstances of the particular case and not by reference to a rule or rules which direct the decision one way or another. The Court has a wide discretion to do justice in all the circumstances of the facts of the case.
There is a specific practice direction given to Courts and to solicitors which deals with costs in estate matters. In essence, it places a far higher standard on inheritance claims when dealing with the questions of costs and in circumstances where the value of the estate is considered small, the chances of success light, reasonable offers made but rejected or where one party’s actions during the Court process causes such costs to increase unnecessarily, the Court will more likely not award an unsuccessful party’s costs be paid out of the estate.
There is a specific practice direction given to Courts and to solicitors which deals with costs in estate matters. In essence, it places a far higher standard on inheritance claims when dealing with the questions of costs and in circumstances where the value of the estate is considered small, the chances of success light, reasonable offers made but rejected or where one party’s actions during the Court process causes such costs to increase unnecessarily, the Court will more likely not award an unsuccessful party’s costs be paid out of the estate.
There is an urban myth that the estate pays for everyone’s legal costs.
So what’s the truth?
So what’s the truth?
You should always obtain an honest and objective assessment of your case and a formal costs agreement/retainer should be entered to ensure you are not being promised something that does not eventuate.
