Our property is ours to do with what we wish when we die. Or is it?
While Queensland law recognises an individual’s right to testamentary freedom, there are some constraints that prevent this freedom from operating in an unrestricted manner.
Estates are often challenged for a variety of reasons. There may be some reason to doubt the validity of the Will. Someone may feel that they have not been adequately provided for.
Notwithstanding our freedom to distribute our property in any manner we see fit, a Will setting out “who gets what” may not always be the end of the matter.
Estates are often challenged by people who believe there is reason to doubt the validity of the Will. Specific concerns may include:
Where such concerns arise, it is necessary for the Supreme Court of Queensland to determine the validity of the Will. The Court will consider whether the Will is the true Will of the deceased, made freely and without influence. Where the Court finds the Will to be invalid, the Estate assets will not be distributed in accordance with the deceased’s wishes, but rather according to the rules of intestacy.
Estate disputes can also arise where the deceased did not make adequate provision in their will for a particular person. An application for further and better provision from the Estate of a deceased known as a Family Provision Application can be made to the Supreme Court of Queensland.
Those eligible to make an application are:
In all Estate litigation and Estate disputes the Court will consider the individual factual circumstances of the application. It is at the discretion of the Court to vary the provisions of a Will. There is no formula for any entitlement that a person should receive from an Estate.
Proof of eligibility does not automatically guarantee that the Court will vary the provisions of a Will.
Generally the Court will compare the needs of the person who is making the claim (the applicant) with those of the other beneficiaries in order to determine whether the applicant has been left without adequate provision for their maintenance or support.
In making this assessment, the Court will usually look at:
Where the Court finds that adequate provision has not been made for the applicant it will then determine what, if any, provision ought to have been made for the applicant. In doing so the Court is required to consider what provision the deceased would have made had they been “just and wise” at the time of making their Will.
Whatever the nature of the dispute the first step is to obtain a copy of the Will. Our team will can then make an assessment in relation to the likelihood of a dispute being successful.
Often disputes can be resolved quickly and cost effectively by negotiation. If that is not possible the dispute can be taken to Court.
If you have a concern in relation to an Estate or are considering disputing an Estate you should seek legal advice from us as soon as possible.
Strict time limits apply for many Family Provision Applications. It is best to have a dispute addressed and resolved before the assets of the Estate are distributed. This avoids any difficulties that may arise if it is necessary to redistribute Estate assets where they have already been distributed and perhaps exhausted by beneficiaries.
Our team at FC Lawyers will take action to make sure that the assets of the Estate are protected while the dispute is being resolved.
FC Lawyers has developed a No Win – No Fee Estate litigation and Estate claims arrangement as we understand that high quality legal services can be an expensive and unexpected financial commitment. We have successfully helped many clients who without our No Win – No Fee Estate litigation arrangement, not have been able to afford the expense of litigation.
Contact our team of Wills and Estates lawyers today to discuss your Estate Litigation and Estate Claims. Our team have provided legal advice for hundreds of estate litigation claims.
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