Estate and Will Dispute Lawyers Brisbane

Estate disputes typically fall within two categories – challenges to the validity of a Will and contests regarding the proposed distribution of a person’s estate.

Challenges to the validity of a Will may concern allegations that a Will is void because it was not correctly signed or witnessed; that the testator lacked mental capacity when making the Will; or that the Will was signed by the testator under duress or in fraudulent circumstances.

A Will contest, often referred to as a family provision claim, involves a claim by an eligible person that he or she was not left adequate provision from the estate of a deceased person, whether under a Will or through the laws of intestacy.

No matter which ‘side’ you are on, estate disputes are generally fraught with emotion and conflict. If you have been unexpectedly left out of a Will, are dealing with a challenge to the Will of a loved one, or are an executor facing a family provision claim, our estate and will dispute lawyers in Brisbane can help.

Contesting the validity of a Will

Will challenges concern claims that a Will is not valid and should therefore be void. Typical grounds for challenging a Will are:

• Undue influence – an allegation that unreasonable influence was exerted over a testator (will-maker) to the effect that the provisions of the Will are different to what he or she might otherwise have wanted – generally benefiting the person claimed to have exercised the undue influence.
• Fraud – a dispute regarding the integrity and/or authenticity of a Will, for example, that the signature on the Will is a forgery or that the Will was fabricated by somebody other than the deceased person.
• Lack of testamentary capacity – a claim that the testator lacked the necessary legal capacity when making the Will, for example, that he or she was suffering from dementia or some other form of illness affecting capacity.

Estate disputes can also involve issues regarding the appointment and removal of executors, or the interpretation of ambiguous terms.

Family Provision Claims

It may come as a surprise to be left out of a Will or with a lesser inheritance than you expected, but there are many reasons why this could have happened. Regardless of the circumstances, you may be entitled to pursue a family provision claim.

A family provision claim involves an ‘eligible person’ making a claim on the estate of a deceased person or the proposed distribution of an intestate estate. If successful, the terms of a Will may be altered in favour of the claimant. A claim has the potential of leaving less inheritance for other beneficiaries and, accordingly, may be strongly contested.

I’ve been left out of a Will – can I make a claim?

In Queensland, an eligible person generally includes a spouse or de facto partner of the deceased; a child, stepchild or adopted child; and other categories of persons who were dependent on the deceased (provided certain circumstances exist).

The definition of an ‘eligible person’ varies between Australian jurisdictions and there are time limits for making a claim. Accordingly, we recommend obtaining legal advice quickly to ascertain your position. If you wish to make a claim, we can assess your circumstances to determine your eligibility and advise on the likely prospects of success so you can make an informed decision.

If you decide to proceed, we will notify the executor of the estate advising them of your intention to make a claim. If necessary, our Brisbane will dispute lawyers can also seek orders from the court to prevent the distribution of any of the deceased’s assets until your claim is resolved. This is an important step as it ensures that funds are not distributed and spent by beneficiaries before your claim has been finalised.

Grounds for making a claim

If you are eligible to make a family provision claim, you must show that the deceased person failed to make adequate provision for your proper maintenance, education, or advancement in life.

We will need to gather evidence to support your claim. This will include details of your relationship with the deceased person, your financial situation and needs, and the assets of the other beneficiaries.

Once your evidence is ready, the executor will be contacted for settlement negotiations. Many family provision claims are settled through negotiation or mediation without having to go to court. While this usually saves a lot of time and money, it is important to ensure that an out-of-court settlement provides a fair and reasonable outcome in the circumstances.

If the claim is not resolved, a court may need to decide whether a claimant is successful and, if so, what adjustment should be made in that person’s favour. If proceeding to court, it is usual practice for the parties to be ordered to attend a mediation. It is only if early settlement discussions and mediation fails that your matter will be heard in court.

In determining a claim, a court would consider a range of factors such as:

• the relationship between the deceased person and the claimant
• the financial position of the claimant
• the circumstances, financial position and needs of other beneficiaries
• the age and any physical, mental, or intellectual disability of the claimant or other beneficiary of the estate
• the size and nature of the estate
• the extent to which the claimant has already been provided for under the Will, if relevant
• any benefits previously given to the claimant or a beneficiary of the estate

Can I make a family provision claim if there is no Will?

If a person dies without a Will (referred to as dying intestate), their estate is distributed according to a formula prescribed by legislation. This however will not prevent an eligible person from making a claim on the proposed distribution of an intestate estate.

Hiring Experienced Will Dispute Lawyers in Brisbane

At every stage of contesting or challenging a Will, it is important to have sound legal advice from experienced will dispute lawyers in Brisbane. We are skilled negotiators and advocates and will work with you to avoid costly court fees wherever possible while ensuring a fair resolution on your behalf.

If you need assistance, contact us at [email protected] or call 1300 04 08 07 for expert legal advice.