Disputed Estates / Wills

If you have been left out of a Will, or not properly provided for, you may have a claim under the Family Provisions Act 1982 (FPA). 

Contested or Disputed Estates is a complex area of law. Whether you are an applicant seeking provision out of the Estate, seeking to protect provision which ahs been made for you where the will is being challenged,  or an Executor dealing with a claim, we can provide  expert legal advice and representation.
 
It is important to note that not everyone can contest a Will, and only an “eligible person” can make a claim under the Family Provisions Act.
People who may be eligible to claim include:-
  • a spouse of the deceased, including a de facto spouse and a person living in a domestic relationship with the deceased at the date of death (that relationship can be a same sex relationship)
  • a child of the deceased
  • a former spouse of the deceased
  • a person who was dependant on the deceased
  • others including a member of the household of the deceased.
There are many criteria and conditions that apply to each of the categories and the experienced solicitors in our Wills and Probate team at Craddock Murray Neumann are happy to provide further information on your eligibility to make or defend a claim.
 
Further information
 
Contact Craddock Murray Neumann Lawyers on (02) 8268 4000 for friendly professional service.
Don't set your family up for a fight over your will
Date: Sep 21, 2016

They say two things are certain in life: death and taxes. These used to come at once as death duties - a tax on the dead. That archaic concept was abolished in New South Wales in 1981, but complications after a person passes away persist.

What happens when an executor cannot find a will?
Date: May 24, 2016

To deal with the deceased estate, the executor will need to firstly obtain a grant of probate on the basis of the original Will. What happens if the original Will cannot be found?

Testamentary Freedom Can Be Restricted by Contract
Date: Nov 19, 2014

It is well settled that a person can, by contract, restrict his or her testamentary freedom. This can be done in several ways.

Factors the Court Considers when Making an Order for Provision from a Deceased's Estate
Date: Nov 17, 2014

The Case Law states that the Court must not disregard the interests of other beneficiaries in determining a Plaintiff’s Application for provision from a deceased’s estate even in circumstances when those other beneficiaries have been given notice of the Plaintiff’s proceedings but have chosen not to make an Application themselves or participate in the proceedings.

The Curse of the Homemade Will
Date: Sep 18, 2014

A recent Judgment in a case involving interpretation of a homemade will commenced with the words “Homemade wills are a curse”.

Overview of Family Provision Cases Where Eligible Person is a Dependant or Grandchild of the Deceased
Date: Sep 08, 2014

Being an eligible person is a necessary precondition to the Court making an order for provision out of the estate of a deceased person for the maintenance, education or advancement in life of the eligible person.

Will maker can make no provision made for adult children
Date: Aug 20, 2014

It is clear from decided court cases that the Court accepts that willmakers are in certain circumstances entitled to make no provision for children, particularly in the case of children who treat their parent , the willmaker, callously, by withholding without proper justification their support and love for them in their declining years. Even more so when that callousness is compounded by hostility.

Does Dependency Alone Entitle You To Make a Claim for Provision on the Estate of a Deceased Person
Date: Jul 29, 2014

Section 57 (1)(e) & (f) of the Succession Act provides that the following persons are “eligible persons”.

Caveats in Probate Proceedings
Date: Jul 24, 2014

The function of a caveat in probate proceedings is to obtain a stay of proceedings seeking probate, administration or resealing except upon notice to the caveator, i.e. the person who lodges the caveat.

Executors and Administrators living outside Australia
Date: Jun 23, 2014

Generally, the Supreme Court of New South Wales will not grant probate or letters of administration to an applicant living outside of Australia.

Capacity to make a will
Date: Jun 20, 2014

In order to make a will a person must have sufficient mental capacity. If a person does not have the required mental capacity their will may be found to be invalid.

The Problem With Internet Wills
Date: Jun 18, 2014

The Law Society Council has issued a statement on wills practice to address concerns with developments in internet will drafting and the potential for problems of identification, verification and assurance that a willmaker is giving direct instructions free of influence or coercion by relatives, carers, or other third parties.

Changes to Forms: Powers of Attorneys
Date: Jun 16, 2014

The power of attorney is an important and powerful legal tool. It allows you to appoint a trusted person to act on your behalf in relation to your legal and financial affairs when you are temporarily or permanently incapacitated. Some recent changes to the forms used to appoint a power of attorney clarify certain aspects of the process of appointment.

What are Powers of Attorney?
Date: Jun 16, 2014

A power of attorney is a legal document where you, as the ‘principal’, appoint another person your attorney to control and make decisions on your behalf regarding your legal and financial activities which could include dealing with your money, bank accounts, real estate, shares or other assets. If you want your attorney to deal with real estate, the power of attorney must be registered with the Land and Property Information Office.

Lost Wills
Date: Mar 21, 2014

The law presumes that a will has been destroyed by the deceased with the intention of revoking the will if...

Applications For a Grant of Probate or Letters of Administration on Presumption of Death
Date: Dec 17, 2013

An Application for a Grant of either Probate or Letters of Administration on presumption of death occurs in every case where the deceased’s body cannot be found. This is the case even though a Certificate of Death may have issued.

Informal and Stopgap Wills
Date: Nov 26, 2013

There may be circumstances in which as a result of time or other constraints the usual time and consideration that should be taken to prepare a formal will cannot be taken.

What is a “Benjamin Order”?
Date: Oct 04, 2013

An issue sometimes facing a plaintiff is establishing the identity or whereabouts of persons to whom the deceased’s estate or part of the estate should be distributed and the inability, despite adducing all available evidence, of ruling out the possibility that a person exists or that person had descendants who might still be alive.

Rectification of a Will by Court
Date: Oct 03, 2013

This area of the law is interesting and complex. The power of the Court to rectify or fix a mistake in a will is limited. Many cases involving clear mistakes in a will are not capable of rectification.

How do I keep my will safe after I have made it?
Date: Sep 04, 2013

There are several ways that a testator (the person who is making the will) can store her/his will and/or information about her/his will.

Will my will still be recognised by NSW law if I make it outside NSW?
Date: Jul 05, 2013

You may have made a will or be considering the possibility of making a will outside NSW. The relevant legislation deals with this situation.

TIME LIMIT (FROM DATE OF DEATH) FOR MAKING A FAMILY PROVISION CLAIM
Date: Jul 03, 2013

Section 58(2) of the Succession Act 2006 requires an application for a Family Provision Order to be made not later than 12 months from the date of death of the deceased person unless the court otherwise orders “on sufficient cause being shown”.

Does a solicitor taking instructions to draw a will owe a duty of care to beneficiaries
Date: May 09, 2013

It is settled law that a solicitor retained to draw a will and ensure that the will drawn up takes effect in accordance with its terms owes a duty of care to an intended beneficiary under the will. That duty gives rise to a duty to exercise reasonable care and skill in performance of those tasks – High Court decision of Hill v Van Erp 1977 HCA 9.

THE DOCTRINE OF “SUSPICIOUS CIRCUMSTANCES” IN PROBATE CASES
Date: Mar 26, 2013

The doctrine of suspicious circumstances was explained in the case of Vernon v Watson (2002) NSWSC.

UNDUE INFLUENCE - CAPACITY TO MAKE A WILL – TESTAMENTARY CAPACITY
Date: Mar 25, 2013

It is often said that concepts of testamentary capacity and knowledge and approval of a will are distinct, and that the issue of knowledge and approval only arises once it is found that a willmaker has testamentary capacity.

TESTAMENTARY CAPACITY AND THE APPOINTMENT OF THE NSW TRUSTEE & GUARDIAN
Date: Mar 14, 2013

The making of an Order appointing the NSW Trustee & Guardian the manager of a person’s estate does not in all circumstances lead to the conclusion that the managed person lacks testamentary capacity during the currency of the order.

What is the effect of marriage on a will?
Date: Mar 13, 2013

There are a number of times in your life when you should review your will to make sure that it will give effect to your intentions in relation to your property and estate.

Life changes and wills
Date: Mar 12, 2013

Did you know that your will actually becomes invalid once you marry? Only in special circumstances does its validity continue after you marry.

Estate planning for unforeseen circumstances
Date: Mar 11, 2013

The importance of estate planning is most clearly seen when unforseen circumstances occur.

WHAT HAPPENS WHEN A BENEFICIARY WITNESSES A WILL?
Date: Mar 08, 2013

Section 10 of the Succession Act 2006 appears under the heading “Can An Interested Witness Benefit From A Disposition Under A Will?”

WHAT IS TESTAMENTARY CAPACITY – CAPACITY TO MAKE A WILL?
Date: Mar 07, 2013

To make a valid will a person must have testamentary capacity which is described as being “... of sound disposing mind when the will is made and there must be no coercion which overpowers the volition of the testator” – Hall v Hall (1868).

TESTAMENTARY CAPACITY – CAPACITY TO MAKE A WILL – WHAT DOES THE COURT CONSIDER?
Date: Mar 05, 2013

The approach to the issue of determining testamentary capacity has changed little since the 1924 decision of Bailey in which the following principles were set out.

WHAT IS UNDUE INFLUENCE IN PROBATE?
Date: Mar 03, 2013

Undue influence in probate is different from the equitable doctrine of undue influence.

Can a Minor Make a Will or Revoke a Will?
Date: Feb 28, 2013

A minor is the legal description of a person under the age of 18 years. As a general rule a minor cannot make a will.

Considering debt with estate planning
Date: Feb 13, 2013

Debts do not just disappear when you die. Effective estate planning includes ensuring you are debt free when you die or alternatively leaving enough money behind so that your family are not left dealing with your debts.

Who can apply for Letters of Administration?
Date: Nov 18, 2012

When a person dies without a will institutions such as banks, insurance companies and superannuation funds will often require someone to be granted Letters of Administration before funds of the deceased are released.

Estate planning involves appointing your children’s guardian
Date: Oct 04, 2012

For many people, one of the least enjoyable parts of estate planning is appointing your children’s guardian should you and your partner die before they turn 18.

Validity of a Will - What constitutes an informal will?
Date: Sep 17, 2012

When deciding the validity of a will a Court usually has to decide whether a document not duly executed sets out the testamentary intentions of the deceased.

Validity of a Will – Joint & Mutual Wills
Date: Sep 13, 2012

A joint Will is a Will dealing with the property of two or more testators in the one Will. Mutual Wills are Wills usually made by separate documents in which two or more persons execute separate Wills conferring reciprocal benefits upon each other.

Validity of a Will – Can Documents Referred to in a Will be Incorporated into the Will?
Date: Sep 12, 2012

Where documents are referred in a testator’s will but are not duly executed in accordance with statutory requirements, i.e. signed by the testator in front of not less than two witnesses who also signed the document in front of the testator and each other, those documents may be incorporated into the Will and included in the probate if they fulfil the following requirements.

Validity of a Will – Revoking a Will
Date: Sep 11, 2012

Section 11 of the Succession Act 2006 specifies the manner in which a Will can be revoked.

Validity of a Will – Does Divorce Revoke a Will?
Date: Sep 06, 2012

Section 13 of the Succession Act 2006 provides that, subject to a contrary intention in the Will, divorce revokes, in the existing Will.

Validity of a Will – Does Marriage Revoke a Will?
Date: Sep 05, 2012

Section 12 Succession Act 2006 specifies the effect of marriage on a Will and its validity.

Validity of a Will – Who Can Witness a Will
Date: Sep 04, 2012

Although it may be blinding obvious, a person who is unable to see or swear he or she saw the testator sign a document may not act as a witness to a Will - section 9 Succession Act 2006. A Will not properly witnessed, may be an invalid Will.

FAMILY PROVISION – ELIGIBLE PERSONS – FORMER SPOUSE OF THE DECEASED
Date: Jul 16, 2012

Former spouses are included in the definition of eligible persons in the Succession Act 2006 – Section 57(1)(d). The inclusion of former spouse as a category of eligible person enables the surviving partner of a dissolved or annulled marriage to claim against the estate of the deceased.

FAMILY PROVISION – PERSON ELIGIBLE TO APPLY MUST BE ALIVE
Date: Jul 16, 2012

The categories of “eligible persons” are set out in Section 57 of the Succession Act 2006 and include.

Family Provision Overview
Date: Jul 16, 2012

Gambling away inheritance?
Date: Jun 18, 2012

Lucy, Kate and Mark are concerned that if Rebecca dies before Ronald, he will gamble the estate away and Ronald will become financially dependent on them and/or will incur gambling debts that he will not be able to repay.

Time limits on Making a Family Provision claim
Date: May 30, 2012

A claimant has 12 months from the date of the deceased’s death to bring a claim for provision from the deceased’s estate. Under s58(2) of the Succession Act 2006 (NSW) the court may extend the time limitation where the claimant can show ‘sufficient cause’.

What happens if I leave a gift in my Will that no longer exists when I die?
Date: May 20, 2012

John and Mavis were married. John had one daughter Edwina. In 2001 John made a Will leaving his house to Mavis and the residue of his estate to Edwina. In 2005 John sold the house. John died after the house was sold.

Choosing your executor
Date: May 09, 2012

When making your Will one of the key decisions you must make is who to appoint as your executor.

8 reasons to have a lawyer draft your will
Date: Apr 30, 2012

With easy access to cheap and even free will kits why pay a lawyer to draft your will?

Fixing errors in Wills
Date: Mar 28, 2012

When Barry signed his will he failed to pick up the mistake. When Barry died “The Gin Palace” had already been sold and as a result Tina was left without an inheritance. When such an error is made there are several options open to a beneficiary in Tina’s position.

Executor’s duties and liabilities – Debts of the deceased
Date: Mar 26, 2012

Depending the size of an estate and the nature of the will, being appointed and executor can be an onerous task. For example if the estate is large and includes a variety of assets an executor may spend many hours arranging the sale of those assets to realise their value before distribution. If the will is contentious the executor may be named as a defendant in proceedings brought by beneficiaries or claimants under the will.

Matters the Court looks at relating to proof of validity of a will.
Date: Mar 01, 2012

The rule with wills is that a later valid will prevails over an earlier valid will. The party claiming that the later will should prevail has the onus of proving that the later will is valid.

Why should I get a lawyer to write my will, when a will kit is a fraction of the cost?
Date: Mar 01, 2012

To begin with if you have a complex asset structure an estate planner will be invaluable in making sure your assets are devolved efficiently and in manner that affects your wishes. But more importantly a lawyer is in the best position to ‘future proof’ your will. That is draft it in a way that reflects your wishes and prevents your will being challenged once you die.

When someone dies without a will - applications for letters of administration
Date: Jan 30, 2012

Lucy’s father died some years ago and her mother, Esther died late last year. Lucy has an older sister who lives overseas and a younger brother. After searching Esther’s house high and low and contacting Esther’s lawyers, Lucy was unable to find any will made by her mother. Esther had a house in Petersham, two bank accounts, a superannuation fund, a car and various personal effects. When Esther died she had a modest credit card debt as well as some outstanding utility bills.

Euthanasia, Murder and Inheritance: can those who bring about the death inherit from the estate of the deceased?
Date: Jan 20, 2012

As Australia’s population rapidly ages euthanasia is becoming an ever more pressing issue. Some people who advocate euthanasia are already at a stage in their illness where they require assistance to take the own lives. This puts any person assisting to bring about the death who is also a beneficiary of the estate in a difficult legal position. Not only do they risk criminal prosecution but it can affect their position as a beneficiary of the estate of the person wishing to die.

Can I bequeath my heart?
Date: Dec 13, 2011

When you can get a court ordered DNA test?
Date: Nov 28, 2011

Under s26 of the Status of Children Act 1996 a party to proceedings may apply to the Supreme Court for an order requiring a parentage testing procedure to be carried out for the purpose of obtaining information to assist in determining the parentage of the child.

Mum has left our family home to her new husband – what can we do?
Date: Nov 27, 2011

Before Jim and Genevieve married they decided to execute mutual wills. A mutual will is where each individual has a separate will but they confer reciprocal benefits on each other. Jim’s will stated that he would leave all of his estate to Genevieve and if she died the estate would be divided equally between their two children Julia and Jonty. Likewise Genevieve’s will left everything to Jim and to their two children if he died.

Is a will valid if a lawyer doesn’t sign it?
Date: Nov 21, 2011

In September Noreen handed Ngaire an envelope and said, “This is my will. You don’t need to read it now. Just hold on to it until I die.” Ngaire did not open the envelope but put it safely away in her top draw.

Who will look after your pets?
Date: Nov 15, 2011

For many, the processes of estate planning involves thinking about their family and loved ones - trying to take their circumstances into account and considering what measures they would like to take to promote their future happiness.

Challenging your parent’s will if they have left a larger portion of their estate to charity than to you.
Date: Nov 12, 2011

Some of the world’s super rich such as Bill Gates and Warren Buffet have famously left the bulk of their estate to charity and their children only a small fraction of their fortunes. Can you safely leave the majority of your estate to charity? Can you challenge your parent’s will if they have left a larger portion of their estate to charity than to you?

If the deceased has promised to look after someone; breach of promise/contract and family provision claims
Date: Sep 28, 2011

If someone promises to take care of you financially and then they die, what do you do?

UNSIGNED WILL; ORIGINAL COPY OF PREVIOUS SIGNED WILL LOST
Date: Sep 23, 2011

We acted for the son of the first marriage of the deceased. The second wife of the deceased sought to Probate an unsigned Will.

Coercion in making a will
Date: Sep 07, 2011

The case of Wingrove v Wingrove (1885) is the authority for the proposition that a testamentary disposition does not have a testator’s knowledge and approval if the testator was coerced into making a bequest.

What can a will be written on?
Date: Sep 07, 2011

In Estate of Slavinskyj (1989), testamentary dispositions written on the back of a packet of cornflakes were held to be valid.

Witnessing a will
Date: Sep 07, 2011

A prominent Cricket fan wishes to make a will, but doesn’t trust anyone associated with the consortium for which he barracks to witness it for him.

COMMENCING FAMILY PROVISION ACT PROCEEDINGS
Date: Sep 06, 2011

If the deceased died after 1 March 2009, proceedings for a family provision orders are commenced pursuant to the Succession Act 2009. The Family Provision Act 1982 was replaced by the Succession Act 2009 on 1 March 2009. A claimant has 12 months from the date of death in which to commence proceedings for a family provision order.

DISTRIBUTING THE ESTATE: protection against Family Provision Act claims
Date: Sep 06, 2011

A claim for an order from a deceased person’s estate for a family provision can be made up to 12 months from the date of death.

Mental or Testamentary Capacity To Make a Will
Date: May 20, 2011

Age, even great age, does not prevent a person having testamentary capacity to make or change their will. It is not even necessary that the willmaker be able to read or write, as long as appropriate steps are taken to make sure that they understand the will.

Costs and Family Provision Act Cases – Significance of Practice Note SC Eq 7
Date: Nov 30, 2009

In May 2009, the Supreme Court issued a Practice Note as to the conduct of Family Provision Act cases - SC Eq 7 – Family Provision – (“the Practice Note”) which applies to claims both under the Family Provision Act 1982 and its replacement, Chapter 3 Succession Act 2006 (NSW).

What is a will?
Date: Jan 01, 2008

Can I write my own will?
Date: May 01, 2007

Back to Service List