2 02 MAURICE BLACKBURN YOU RE WORTH FIGHTING FOR. If you are facing an unfair situation, you and your family shouldn t have to suffer. That s why we never stand back when bad things happen to good people. At Maurice Blackburn we believe that the law should serve everyone. Who you are or where you re from, it doesn t matter. You re worth fighting for. Maurice Blackburn was born from one man s belief in making a difference to people s lives. Nearly 100 years on these values remain a powerful influence on everything we do. We exist to fight for your rights. For what you deserve. When life isn t fair we ll help you to fight for everything you re entitled to. Because at Maurice Blackburn, we fight for fair.
3 03 WILL DISPUTES When a person makes a Will, they have the right to decide what happens to their Estate after they die. But there are also laws to protect people who receive an unfair entitlement in a Will. Maurice Blackburn s lawyers can use the law to enable people close to the deceased to be provided for in a fair way, even if they were initially left out of the Will completely. Contesting a Will If you ve been left out of a Will or haven t been left with a fair inheritance, it s good to know you can challenge the Will. Maurice Blackburn s lawyers will do everything they can to get your proper entitlement. Our first consultation is free and it s at this point we will tell you whether we believe you have a strong case that is worthwhile pursuing. If you go ahead, we will act for you on a no win, no fee basis (conditions apply). Who can contest a Will? A Will is a legal document that explains what a Will maker wants to happen to their Estate after they die. If there is no Will, a person s Estate will be distributed according to state intestacy laws. If you believe your share of a Will is not adequate, or if you ve been left out altogether, you may be able to challenge the Will. If the intestacy provisions are operating unfairly, where there is no Will you may also be able to challenge. People commonly contest Wills on the basis that their entitlement to the Estate is not enough. You may be able to contest a Will if any of the following apply: you were not adequately provided for in the Will you were dependent on the person who died your relationship with the deceased began after the last Will was made the Will doesn t take into account the partner or children in another marriage or de facto relationship you can show that the Will maker was not in a sound state of mind when they made their Will you can show that the Will maker was wrongly influenced by one or more of the beneficiaries the Will is unclear. Process of contesting a Will Five stages of contesting a Will 1 Choose a lawyer The first step in contesting a Will is choosing the right lawyer to represent you. Maurice Blackburn has a team of lawyers who specialise in Will disputes. We have many years of experience standing up for people who have been unfairly treated in Wills. Our lawyers will work hard to get you the result you deserve. 2 Starting your claim If you choose Maurice Blackburn to represent you, we will ask you to sign our no win, no fee cost agreement. We will then write to the Executor of the Estate setting out the details of your claim.
4 04 MAURICE BLACKBURN 3 Settlement negotiations A vast majority of Will disputes claims settle before going to court, either through pre-mediation settlement negotiations or by participation in a courtordered mediation. 4 Mediation A high proportion of Will disputes are successfully resolved by the alternative dispute resolution process known as mediation. 5 Court hearings If a mediation is unsuccessful, it may be necessary to proceed to trial. Time limits for contesting a Will The time limits for contesting a Will vary from state to state. Victoria and Western Australia In Victoria, generally claims against an estate must be commenced within six months of the date of the grant of probate. New South Wales In New South Wales generally claims against an estate must be commenced within 12 months of the date of death. ACT Claims in ACT must be made within 12 months of the grant of probate or administration. South Australia In South Australia, generally claims against an estate must be served upon the Executor of the Estate within six months of the date of the grant of probate. Tasmania In Tasmania, generally claims against an estate must be commenced within three months of the date of the grant of probate. Queensland In Queensland generally claims against an estate must be commenced within 9 months of the date of death, however the executor (the person administering the Will) or their solicitor must be notified of a claim within 6 months of the date of death of the deceased. Northern Territory In the Northern Territory, generally claims against an estate must be commenced within 12 months of the date of the grant of probate. It is very important that you do not delay in making a claim. If you are unsure how long you have to challenge a Will, please contact us today. Things the court considers in a Wills dispute When someone makes a Will, they have the right to leave their Estate to whom they like. But the court also recognises that Will makers may have a responsibility to provide for other people, who were not included in a Will. In determining whether you have an entitlement, the court will look at a number of factors, including: the type of relationship you had with the deceased how long the relationship lasted if you made any contributions to the deceased s Estate if the deceased made any promises to you the size of the Estate your financial needs the financial needs of any other people who may have a claim to the Estate.
5 05 WILL DISPUTES Legal costs of contesting a Will At Maurice Blackburn, we represent clients on a no win, no fee basis. This means that if we don t get a result that benefits you, you will not have to pay our legal costs. Dying without a Will It is not compulsory to make a Will, and not everyone has a Will when they die. What happens when someone dies without a Will? If someone dies without a Will, also known as dying intestate, their Estate is divided according to relevant state laws. This doesn t always take into account the true nature of family relationships, or any responsibility the deceased may have had to provide for certain people. In intestacy, an Estate is often distributed in a very different manner compared to what the deceased would have wanted, or what the beneficiaries would say is fair. There are two main ways the distribution of an intestate Estate can be challenged. If all of the beneficiaries can agree on a solution, a deed of family arrangement can be drawn up to change the way the Estate is distributed. This is the simplest course of action. The second way to challenge the distribution of an intestate Estate is with a testator s family maintenance claim, which is for people who believe their share is not enough. Contesting the distribution of an intestate Estate If you believe your share of an intestate Estate is not reasonable, Maurice Blackburn can help you make a testator s family maintenance claim, and fight for what you re entitled to. Contesting a Will case studies Successful Will dispute cases Every Will dispute case is different, and if you re thinking about challenging a Will you ll probably have a lot of questions about how it all works and what the outcome might be. These stories describe recent cases where we ve helped people to successfully challenge a Will. Some names have been changed for privacy reasons. Kathy Kathy spent many years caring for her mother, but despite all her time and effort, was left with less than 10 per cent of the Estate for her and her daughter when her mum died. They were the only two living relatives. This wasn t fair, and Kathy came to Maurice Blackburn to see if there was anything we could do. We worked with her to contest her mother s Will, and managed to increase her share to more than 40 per cent. This extra inheritance meant that Kathy could provide a better life for her daughter, including sending her to a good school. Jean Jean had a good relationship with her mum for most of her life, and was a loving daughter who helped out wherever she could. Unfortunately, they had a falling out when her mother was elderly and didn t get the chance to reconcile. When Jean s mother died, she left her entire Estate to Jean s brother, including the family home. This came as a huge shock to Jean, because she still loved her mum, and honestly believed her mum still loved her. Maurice Blackburn helped Jean get a fair share of her mum s Estate without going to court.
6 06 MAURICE BLACKBURN Paul Paul s parents divorced when he was a teenager, and he stayed with his mum while his sister went to live with their dad. Because of the living arrangements, Paul didn t have much to do with his dad after that. Although he didn t expect much of an inheritance, Paul was shocked to find out that when his dad died, he d left the entire Estate to his sister, including the home Paul had grown up in. Despite the family circumstances, Paul couldn t believe his father had totally cut him out of the Will. Maurice Blackburn helped Paul get the share of the Estate his father should have left him in the first place. Jim Jim grew up in a normal, loving family environment, but after a big argument with his parents when he was an adult, he became estranged from them. Unfortunately, this was never resolved. When his mother died, she left 90 per cent of her Estate to her second husband, including the family home. Jim was hurt to find out he d only received 10 per cent, because although he didn t have much to do with her, he honestly expected his mum would have treated him more fairly. Jim came to Maurice Blackburn for help, and we were able to quickly reach a settlement, which meant he got what he was entitled, and didn t have to go to court. Contact Maurice Blackburn if you think you have a claim 1 Your first consultation is free 2 We ll let you know if your case is worth pursuing 3 Cases are taken on a no win-no fee* basis 4 We ll aim to get things sorted out quickly and avoid going to court 5 Remember time limits apply, so act quickly *Conditions apply
7 CONTACT US If you are considering legal action or want to fight for your rights, get in touch and we can assess what you need or arrange for a meeting with one of our lawyers. For most practice areas, your first consultation is free (business hours) mauriceblackburn.com.au You are welcome to drop into one of our offices that is local to you: Victorian Offices (03) Melbourne Dandenong Frankston Geelong Greensborough Mildura Reservoir Ringwood Sunshine Traralgon Wangaratta NSW Offices (02) Sydney Parramatta Queensland Offices (07) Brisbane Browns Plains Caboolture Cairns Gold Coast Ipswich Mackay Rockhampton Strathpine Sunshine Coast Toowoomba Townsville Western Australia Office (08) Perth ACT Office (02) Canberra Call us or visit the website for more details. Note terminology changes depending on what state you reside. Testator s family maintenance claims Victoria Family provision claims NSW, ACT, QLD Inheritance claims WA
8 Maurice Blackburn is a leading Australian law firm certified to the international ISO 9001:2008 quality standard. Information correct at 1 April This brochure is a general guide to dealing with Will Dispute claims and is not a substitute for professional advice in this area. Maurice Blackburn is proud to be carbon neutral (see our website for details). This brochure is printed on ecostar Silk. Made with 100% certified post consumer waste fibre, it is produced with a carbon neutral manufacturing process and has been made in a facility that operates under the ISO Environmental Management System. MB4184_NATWD 04/14
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