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Wills, Probate and Estates

In most cases, Forbes Dowling Lawyers accept instructions to contest a Will on a "No Win, No Fee" basis and offer a free assessment of your prospects of success.

In New South Wales and Queensland, eligible persons can contest a Will and make a Family Provision Claim in the event that they have been left out of a Will or have been otherwise left without adequate provision from the deceased's Estate.

Our lawyers are experienced and sensitive to the needs of our clients while seeking to resolve Wills and Estate disputes in a prompt and professional manner.



Jurisdiction

Each state has a different set of rules that apply to contesting a Will. A claim can only be made in a particular state if:

• The deceased was domiciled (living permanently) in that state at the date of their death and owned assets in that state; or
• The deceased lived elsewhere but owned assets in that state.

Generally, the time limit to commence an action to contest a Will in New South Wales is 12 months from the date of death.

In Queensland, a claim must be brought within 9 months of the date of death. However a Queensland Estate may be distributed within 6 months. Therefore, notice of a claim against the Estate should be provided to the Executor within 6 months of the date of death to ensure the Estate is not distributed prior to the expiry of the 9 month limitation period.

There are some exceptions to the above rules and we encourage clients to call us for a free assessment of your prospects of success.

Grounds for Contesting a Will

In New South Wales and Queensland, a person may file a Family Provision Act Claim if:

1) They are an eligible person ; and
2) The eligible person has been left without adequate provision.

In assessing whether or not an eligible person has been left without adequate provision, the Court will consider the financial position of the Applicant, the nature of their relationship with the deceased, the size of the Estate and the interests of other people who may be eligible to make a claim. Each matter is considered based on the individual circumstances of the case and our lawyers are very experienced at providing clients with an advice on the likely outcome.

Who Can Contest a Will

In NSW eligible persons are defined in section 57 of the Succession Act 2006 (NSW). The section relevantly provides the following eligible persons may apply to the Court for a Family Provision Order:

(a) a person who was the wife or husband of the deceased person at the time of the deceased person's death,
(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death,
(c) a child of the deceased person including adopted children, children born to parties in a in a de facto relationship, or a domestic relationship or a child for whose long-term welfare both parties to the relationship have parental responsibility,
(d) a former wife or husband of the deceased person,
(e) a person:
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.

In Queensland, eligible persons are defined in the Succession Act 1981 (QLD) to only include;

• spouses and de facto spouses;
• children and step-children;
• dependants.

A Dependant is defined in section 40 of the Succession Act 1981 (QLD) as:
"any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person's death being —
(a) a parent of that deceased person; or
(b) the parent of a surviving child under the age of 18 years of that deceased person; or
(c) a person under the age of 18 years."

Adequate Provision

Once eligibility has been established, the Court must then decide what provision, if any, should be made. This calls for an assessment and determination as to whether the provision made in the Will, if any, was adequate having regard to all the circumstances of the case.

The Court will consider whether the deceased left adequate provision having regard to the eligible person's financial position, the size and nature of the deceased's estate, the relationship between the person and the deceased, and the relationship between the deceased and other persons who may have legitimate claims on the Estate.

What will a Court consider relevant when determining a Family Provision Act Claim?

There are a number of factors that are considered relevant when a Court assesses and determines a challenge to a Will. In New South Wales these are set out in section 60 (2) of the Succession Act 2006 (NSW) and include:

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,

(e) if the applicant is cohabiting with another person—the financial circumstances of the other person,

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g) the age of the applicant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l) whether any other person is liable to support the applicant,

(m) the character and conduct of the applicant before and after the date of the death of the deceased person,

(n) the conduct of any other person before and after the date of the death of the deceased person,

(o) any relevant Aboriginal or Torres Strait Islander customary law,

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.

The necessary evidence and matters considered by Courts in Queensland under the Succession Act 1981 (QLD) and are similar to that which is set out above.

In some cases, the Court will also consider if the deceased had a moral duty to the eligible person to have made adequate provision for their proper maintenance and support.

Obtaining a Copy of the Will

All eligible persons are entitled to receive a copy of the Will. You should contact the Executor or solicitor acting for the Estate (if known) to obtain a copy of the Will. The law requires the Executor to provide eligible persons with a copy of the Will.

What happens when there is no Will

If a person dies without leaving a Will, they are considered to have died intestate.

There are specific rules in each state that dictate how an administrator is to be appointed to distribute the Estate under the rules relating to intestacy. After a Court has appointed an Administrator the Court will grant letters of administration.

These letters of administration enable the Administrator to act as a representative of the Estate.

The property will be distributed by the Administrator according to a pre-determined formula with family members receiving a defined percentage. Legislation passed in each state identifies those persons who are consider the deceased person's next of kin and what portion of the Estate they are entitled to receive.

When can a Will be considered invalid

It is possible to challenge the validity of a Will if you believe and can prove that the deceased lacked the mental capacity to make a valid Will or that the Will is a forgery. Additionally the Will may be set aside if it can be shown that the deceased was placed under undue influence at the time of making it or if there is any fraud involved in the making of the Will.

What happens if I don't live in NSW or Queensland?

If the deceased lived in New South Wales or Queensland and had assets in either of these states, a claim can be made in that state even if the eligible person does not live there.

We can assist Applicants living in the other states to make a claim and have offices around Australia for you to meet with a qualified experienced lawyer.

What are the legal fees in making a Family Provision Act claim?

In most cases, Forbes Dowling Lawyers Pty Ltd accept instructions to contest a Will on a "No Win, No Fee" basis and offer a free initial consultation to advise you on your prospect of success.

This means that you do not pay our fees unless you are successful in obtaining an Order for Provision in your favour from the Estate. You will only be asked to pay any disbursements payable to third parties such as the court filing fee.

In Queensland and New South Wales, legal costs in Family Provision Claims are awarded at the discretion of the Judge. In most cases if an Order for Provision is made in favour of an Applicant, an order will be made for your costs to be paid out of the Estate.

If however the Applicant's claim is rejected and no Order for Provision is made, the Court may Order you to pay the Executor's costs of defending the proceedings. For this reason, we would only recommend you proceed with a claim if we assess your prospects of success favourably.

Kindly contact us for a free assessment:

New South Wales: (02) 8272 1932
Queensland: (07) 3023 2300