MAURICE BLACKBURN LAWYERS WILL DISPUTES

Transcription

1 MAURICE BLACKBURN LAWYERS WILL DISPUTES

2 02 MAURICE BLACKBURN YOU RE WORTH FIGHTING FOR. If you are hurt, injured, or 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 think that they have been treated unfairly in a Will. Maurice Blackburn s lawyers can use the law to enable people close to the deceased to be provided for in a proper 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 think that you have been treated unfairly, 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. 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 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, or the Will is unclear. 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 there is no Will and the intestacy provisions are operating unfairly you may also be able to bring a challenge. People frequently contest Wills because they have not been left enough.

4 04 MAURICE BLACKBURN 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 expert lawyers who practise 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 cost agreement. We will then write to the Executor of the Estate setting out the details of your claim. 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 and WA, generally claims against an estate must be commenced within six months of the date of the grant of probate or letters of administration. 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 6 months of the grant of probate or letters of 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 or letters of administration. Tasmania In Tasmania, generally claims against an estate must be commenced within three months of the date of the grant of probate or letters of administration. 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 or letters of administration. 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.

5 05 WILL DISPUTES Factors the court considers in a Will dispute When someone makes a Will, they have the right to leave their Estate to whoever 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, and the financial needs of any other people who may have a claim to the Estate. 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 an intestate estate is by challenging the distribution brought about by the intestacy provisions on the basis that the division of the estate is inadequate. Contesting the distribution of an intestate Estate If you believe your share of an intestate Estate is inadequate, Maurice Blackburn can help you bring a challenge, and fight for what you re entitled to. *Conditions apply

6 06 MAURICE BLACKBURN 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 mum, 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 mum 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. The attention and support I received during my recent litigation was exemplary. The team at Maurice Blackburn Lawyers is not only highly professional and competent, but they have a particularly caring and gentle manner. Their patience and compassion enabled a most challenging process to be completed with ease. Will Disputes Client

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8 08 MAURICE BLACKBURN 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 mum was elderly and didn t get the chance to reconcile. When Jean s mum 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. Defending a Will from a challenge If you are the executor or administrator of an estate that is being challenged, Maurice Blackburn will help you protect the estate. We understand the process and can take much of the burden from you. Our experienced lawyers can explain your legal rights and obligations as executor or administrator and advise on how best to deal with the claim against the estate. 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 dad had totally cut him out of the Will. Maurice Blackburn helped Paul get the share of the Estate his dad 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 mum 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.

9 09 WILL DISPUTES Maurice Blackburn also assists beneficiaries whose entitlements may be affected by a challenge to the Will. Our success rate means that 98% of our Will disputes clients never have to go to Court. We can answer any questions that you have. If you believe a Will may be challenged, contact us today. Sarah Frances made a Will naming her only child Sarah as the Executor and sole beneficiary of her estate. Shortly prior to her death, Frances commenced a de facto relationship with Tony. After she died, Tony challenged the Will on the basis that Frances should have made provision for him in her Will. Maurice Blackburn assisted Sarah and she successfully defeated Tony s challenge of the Will. Sarah was able to retain the majority of the estate in accordance with her mum s wishes.

10 10 MAURICE BLACKBURN Court Authorised Wills What is a Court Authorised Will? Many people who own assets cannot make or amend a Will because they have a disability or impairment (such as dementia or a brain injury) that prevents them from doing so. This may mean that their assets go to unintended people following death. The Court can authorise or revoke a Will for an incapable person to avoid this happening. These are known as Court ordered Wills or statutory Wills. Categories of cases The Court can be asked to authorise a Will for a person in the following circumstances: 1 A person has made a Will before losing capacity and then after losing capacity says that they want to change the Will. An application could be made to the Court for an order giving effect to the intentions expressed by the incapable person. 2 A person has made a Will before losing capacity but later does not have the capacity to change the Will to deal with changed circumstances (such as the death of a sole or major beneficiary or the birth of a child). An application could be made to the Court to alter the Will so that it deals with the changed circumstances. 3 A person has lost capacity before making a Will and the legal formula for distributing the estate is not what the incapable person would have wanted (for example, a distribution to very distant relatives). Where there is evidence that the incapable person would have given their assets away differently had they made a Will, an application could be made to the Court for a Will varying the legal formula. 4 The estate of a person who has never been able to make a Will because of a disability is distributed according to the legal formula in a way that does not provide adequately for all reasonable claims on the estate. The most obvious example is a where the estate of a person born with a disability will be divided equally between both parents when only one parent has ever had parental responsibilities. An application could be made to the Court to alter the statutory distribution to give more to the responsible parent. Before the Court will authorise a Will it must be satisfied that the person with the disability does not have testamentary capacity and that the proposed Will or revocation reflects what the likely intentions of the person would be or might reasonably be expected to be. This is a relatively new and specialised area of law. The Maurice Blackburn Will Disputes team can assist in advising on and bringing Court authorised Will applications. Contact Maurice Blackburn if you think you have a claim Your first consultation is free We ll let you know if your case is worth pursuing Cases are taken on a no win, no fee* basis We ll aim to get things sorted out quickly and avoid going to court Remember time limits apply, so act quickly *Conditions apply

11 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 Will Disputes Work Related Injuries Road Accident Injuries Medical Negligence Asbestos Diseases Superannuation & Insurance Claims Public Liability Faulty Products Comcare Employment & Industrial Law Financial Advice Disputes Class Actions Social Justice 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 Queensland Offices (07) Brisbane Browns Plains Caboolture Cairns Gold Coast Ipswich Mackay Rockhampton Strathpine Sunshine Coast Toowoomba Townsville NSW Offices (02) Sydney Parramatta Western Australia Offices (08) Perth Hamilton Hill ACT Office (02) Canberra South Australia Office Adelaide 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, NT Inheritance claims WA, SA

12 Maurice Blackburn is a leading Australian law firm certified to the international ISO 9001:2008 quality standard. Information correct at 1 January 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 05/15