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Guide To Challenging A Will

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Estate Disputes & Estate Litigation

We handle cases in both Queensland and New South Wales and quite often are involved in estates which span both sides of the border and involve legal issues from both states. 

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Attwood Marshall Lawyers have extensive experience in all aspects of Estate Litigation and challenging of wills. No Win, No Fee! Call us for a free no obligation appointment today! read more

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As a firm with a strong history of representing people who have been left out of a will, there is no circumstance that you can bring to our office that we have not already seen. Read our thoughts on some latest developments in this area of law. read more

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Estate Dispute Resolution

There is nothing like a death in the family to cause trouble between the surviving spouse, family, and loved ones of the deceased. Whether you are unsatisfied with the work of the Will’s executor, are unsure about the validity of a will, or are an executor and need help to fulfill your duties and obligations and avoid an estate dispute, Attwood Marshall can assist you.

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What is a Will?

A Will is a legal document that outlines how the deceased wants their assets (estate) distributed when they pass away, and appoints the person who will be responsible for the administration of that estate (the executor).

The people who receive an estate are its “beneficiaries”.

What is the role of the Will’s executor?

An executor (or multiple co-executors) is responsible for the administration of the estate of a deceased person. The executor’s main duty is to carry out the instructions and wishes of the deceased. Being an executor is a big job, with many estate administration tasks including:

  • Making funeral arrangements
  • Notification of death to the relevant authorities
  • Locating the Will and the beneficiaries it names
  • Applying to the Supreme Court for a grant of probate (the legal document that gives the executor authority to manage the estate according to the provisions of the deceased’s Will)
  • Collecting, maintaining and selling the assets
  • Paying the debts of the estate
  • Handling taxes of the estate including outstanding income tax and capital gains tax
  • Dealing with any court matters
  • Distributing the estate’s assets under the Will
  • Keeping records of the estate’s administration

With so many responsibilities involved in executing a Will, things do not always go according to plan.  If the executor of an estate fails to administer the estate properly or prudently they may be liable for any losses the beneficiaries incur as a result.

Attwood Marshall Lawyers can help beneficiaries of the Will by:

  • Assisting family members where the executor or executors have died or are unable or unwilling to carry out their estate administration functions as executor;
  • Acting for beneficiaries of a Will and ensuring that executors properly administer the estate under the terms and conditions of the Will;
  • Acting for beneficiaries and other family members when executors have misappropriated or have been negligent in investing estate funds or assets;

Attwood Marshall can help executors by:

  • Acting for the executors and trustees of large and complicated estates to ensure that all duties and obligations of the executors and trustees have been fulfilled;
  • Advising executors and beneficiaries about capital gains tax issues arising from the sale and distribution of estate assets.
Often, someone passes away without a valid Will in place. It is a common misconception that if you do not have a valid Will then your estate will automatically go to your spouse, next of kin or the state.

In reality, if a person does not have a valid Will when they die, or if all of their named beneficiaries are deceased at the time of their death, this person’s assets/estate are described as being “intestate”.

When an estate is intestate it will be divided according to the relevant state’s rules of intestacy.

Without proper legal advice, an intestate estate places an extra burden on loved ones in a period of grief and has the potential to cause major conflicts between potential beneficiaries.

Attwood Marshall Lawyers have the necessary expertise to act for families or beneficiaries where the deceased has died without a Will.

Similar to the “grant of probate” given to an executor, “letters of administration” are a court order granting a person the right to administrate the deceased’s estate when:

  • There is no Will
  • The deceased appoints no executor in their Will
  • The executor appointed in the Will has died before the deceased, or
  • The appointed executor wishes to renounce their role

Only certain people can apply for letters of administration, and this is determined by the State Supreme Court.

Attwood Marshall Lawyers can advise and assist beneficiaries in applying for a grant of letters of administration when necessary.

In certain circumstances, the deceased’s Will is invalid. A Will may be invalid if:

  • It is a forgery
  • The person who made the Will lacked the mental capacity to do so
  • There was undue influence put on the Will maker when creating the Will
  • There was fraud involved in the Will making process
  • The Will is incorrectly signed

In such cases, those with an “interest” in the deceased person’s estate are entitled to challenge the validity of a Will. Challenging the validity of a will is different from contesting a will in QLD or NSW (see below).

To have an “interest” in an estate, you must either have an entitlement in a previous Will or an entitlement on intestacy, and you’re entitled to a share of the estate by way of your State Legislation.

Attwood Marshall Lawyers can act for families or beneficiaries where the Will is invalid.

Contesting a Will in NSW or QLD is usually done when a valid Will leaves a person without adequate provision from a deceased estate.

Contesting a will in QLD or NSW is referred to as filing a “Family Provision Application” and only restricted categories of eligible persons (usually spouse, children and dependants) may bring a Family Provision Application.

When contesting a will in QLD or NSW, if the Court finds in your favour, the Court can either vary the provisions of the Will or order the redistribution of the estate.

A person may also contest the Will if the person died without making a Will at all.

Strict time limits from the date of the death apply to anyone contesting a will in NSW or QLD, so it is prudent to seek legal advice regarding provision claims promptly.

Attwood Marshall Lawyers can act for executors where beneficiaries are contesting a Will in NSW or QLD on capacity grounds or are bringing a provision claim.

Many people nominate a friend or family member as the executor of their Will without realising the enormity of estate administration. Often this is meant as a sentimental gesture, but in reality being named executor can be a burden because even though it is a time consuming and often stressful task, that does not automatically grant executors the right to be paid for their efforts.

Unless the Will specifies that you should receive some compensation, you won’t get any commission or payment for being executor.

That said, you have the right to apply to the Supreme Court for commission regardless of what the Will says. If you are a beneficiary of the Will, however, the court won’t usually award you payment as it is assumed that the part of the estate you’ve been left is intended to compensate you for your executor duties.

Attwood Marshall Lawyers can act on behalf of executors and beneficiaries concerning executor’s commission disputes.

Yes. You are under no legal obligation to accept the appointment of executorship. Many people renounce their executorship because they do not have the time or skills required to perform the duties of an executor or are cautious about being liable for the management of an estate.

Renouncing your executorship after you have been given a grant of probate is possible but more difficult.

Attwood Marshall Lawyers can assist executors in renouncing their executorship.

What does it mean if the estate is being handled by the Public Trust Office or the Office of the Protective Commissioner?

Sometimes the deceased, an executor, or the next of kin in cases of intestacy, may nominate a government office to provide executorial services.

In Queensland, these executorial services are handled by the Public Trust Office. In New South Wales, executorial services are provided by the Office of the Protective Commissioner, also known as the NSW Trustee & Guardian.

Attwood Marshall Lawyers can act for families or beneficiaries where estates are being administered by the Public Trust Office or the Office of the Protective Commissioner.

Whether you are an executor, co-executor, trustee, the family or spouse of the deceased, or a Will’s nominated beneficiary, you need to make sure that you are receiving correct legal advice from lawyers who specialise in estate dispute resolution, litigation and estate administration.

Attwood Marshall Lawyers has a long history of acting in estate dispute resolution matters and has a specialist department dedicated to this area.

We handle cases in both Queensland and New South Wales and quite often are involved in settling estates that span both sides of the border and involve legal issues from both jurisdictions.

For any enquiries regarding estate disputes and estate litigation, please contact the Department Manager Donna Tolley on direct line (07) 5506 8241 or by email on [email protected]

Alternatively, you may wish to complete our online enquiry form and have us contact you today.

Or you can visit one of our offices near you. Feel free to drop into our Robina, Coolangatta, Brisbane Tweed or Kingscliff office today.

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If you have been left out of a Will or feel that you have not been adequately provided for in someone’s Will, please contact us to arrange an obligation free appointment for preliminary advice. Our experienced lawyers will be able to provide you with an assessment of your prospects of bringing a claim and outline the terms upon which we are prepared to accept your instructions.

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When a family member dies it is often an extremely emotional time. This can be made worse if there is any kind of dispute against the Will of the deceased.

A Will can be challenged if you have not been adequately provided for your maintenance, education and advancement in life.

However, not just anyone can apply for provision or further provision from a deceased’s estate.

You must fit into one of the six (6) categories of “eligible persons”. Otherwise no matter how close of a relationship you had with the deceased, you cannot contest a Will under the Family Provision legislation.

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When a family member dies it is often an extremely emotional time. This can be made worse if there is any kind of dispute against the Will of the deceased.

A deceased person’s spouse, child or dependent, who considers that adequate support has not been made for his or her proper maintenance and support, can apply to the Court for an order that provision be made out of the estate for their benefit pursuant to Part 4 of the Succession Act 1981 (“the Act”).

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There is nothing like a death in the family to cause trouble amongst the surviving spouse and/or relatives of the deceased!
Whether you are an executor, co-executor or trustee of a Will and are having problems with the family or nominated beneficiaries in the Will, you need to make sure that you are receiving correct legal advice from lawyers who specialise in this area. Attwood Marshall Lawyers has a long history of acting in estate dispute resolution matters and has a specialist department dedicated to this area.
We handle cases in both Queensland and New South Wales and quite often are involved in estates which span both sides of the border and involve legal issues from both states.

see more

What factors are relevant to the Court in deciding whether an applicant will receive provision or further provision from the deceased estate?

Not all eligible persons are entitled to provision or further provision out of the Estate of the deceased person.

The factors that may be considered by the Court include the following:

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In most litigation cases these days the Court requires the parties to attempt to resolve the dispute before asking for a court to determine the issue.

In New South Wales, mediation of a Family Provision Claim is compulsory before you are able to proceed to trial.

What is Mediation?

Mediation is simply an attempt by the parties to resolved the disputed matter.

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Some examples of Estate Disputes are:

There may be a dispute about the mental capacity of the deceased to understand what he or she was doing when providing instructions for his or her Will?
There may be a dispute that the deceased was unduly influenced by another person prior to signing of his or her Will and that it may not reflect his or her wishes in relation to her estate?

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Attwood Marshall Lawyers have extensive experience in all aspects of Estate Litigation and challenging of wills. No Win, No Fee. Call us for a free no obligation appointment today!

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