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.
- Schizophrenia or paranoia
- Usually a family member or from people close to the deceased
- Difficult to prove
- Ambiguous terms
- Unclear intentions
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?
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.
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
Guardians of infant or young children…who should you appoint and should they receive financial consideration?
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 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.
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 may include step-children in some circumstances but would usually only apply if those children where very young and had substantial need.
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.
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.
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 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.
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?
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.
So what’s the truth?