Contesting Wills / Estate Disputes 

Contesting a Will is a complex and stressful undertaking. However:

• you may feel unfairly left out ;

• you have not received enough: or

• there may be suspicious circumstances leading to the formation of the Will.

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Grounds of Challenge

A Will can be challenged on a number of grounds including for example:

• Execution Requirements: the Will was not properly executed and witnesses at Law.

• Want of Knowledge and Approval: The deceased could not have approved its contents for example, it may have been signed when the Deceased was very ill in Hospital and the Will not read or properly understood by the Deceased.

• Lack of Mental Capacity: At the time of execution, the deceased did not have proper mental capacity or understanding.

• Suspicious Circumstances: The Will was procured by undue influence / force / suspicious circumstances.  The terms might favour a family member over others with no explanation. In such cases, an earlier made Will may prevail over the alleged last Will and/ or the Rules of Intestacy may apply.

 

Adequate Provision Claims by Spouse / Children / Dependants

Even if the Will is valid you may be able to challenge a Will if:

• You are a spouse, child, stepchild or dependent of the deceased; and

• You have been left without “adequate provision” for your “proper maintenance and support”.

 

There are strict time limits for making these claim and you should seek urgent legal advice.

  

Estate Administration Lawyer

 

We assist executors and trustees  in Estate Administration and transference of wealth to beneficiaries.  We assist in upholding the terms of the will or defending the estate against unmeritorious claims.

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Estate Administration Work may involve:

• Advising the executors on responsibilities at law

• Identifying the assets and liabilities of the estate

• Communications with the creditors of the estate and payment of liabilities

• Distributing the estate to beneficiaries

• Causing the legal transfer of real property and other assets

• Finalisation of taxation obligations

• Registration of the death for jointly owned property

• Obtaining - Probate where there is a will and Letters of administration if the deceased did not leave a Will

 

 

Rules of Intestacy: What if there is no Will?

Under Queensland intestacy rules, if a person dies without a will, their estate is distributed as follows:

• If you are married with no children, your spouse receives 100% of your estate.

• If you are married with one child your spouse receives the household chattels and the first $150,000.00. Any amount over $150,000.00 is divided equally between the spouse and your child. In the event your child is under the age of eighteen, their share will be held on trust until they reach the age of eighteen.

• If you are married with two or more children your spouse receives the household chattels and the first $150,000.00. Any amount over $150,000.00 is divided: 1/3 for your spouse; Remaining 2/3 divided equally between your surviving children.

 

Drafting Wills

The Most Important Document You Will Ever Sign

• Without question, one of the most important documents you will sign during the course of your life will be your Will. 

• The wisdom of having your Will professionally drafted cannot be underestimated.  A mistake in drafting may lead to costly Supreme Court proceedings which will diminish the value of your estate.

 

What Happens If You Don’t Have a Will

• Unless a Will is made, the manner in which your estate is to be disposed of is determined by the rules of intestacy, as contained in the Succession Act 1981 (Qld). 

• These rules are complex in application and may result in dispositions of your property which do not accord with your wishes. 

• A properly drafted Will allows you to provide for your selected beneficiaries in the way you deem most appropriate.

 

When Should Your Will Be Reviewed?

• If you already have a Will, it is desirable to review that Will every few years to keep up with changing circumstances of your life. 

• This is particularly important where:

  • You marry or divorce;

  • You have any children or any further children (including adopted children);

  • A beneficiary or executor named in the will dies;  or

  • There is a major change in the composition of your assets.

 

What Do You Need To Think About?

• As a minimum, you need to give that careful thought as to:

  • who you will appoint as executor/trustee

  • the assets and liabilities of your estate

  • the beneficiaries

  • any specific gifts and what will happen to the residuary of your estate

  • business succession matters,

  • the transfer of shares or interests in trusts

  • the continuation of any previous role as trustee of any trust

  • guardianship and provision for your children and other dependents

  • taxation consequences

 

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Enduring Power of Attorney & Advanced Health Directives

• Your Will only has operation after your death.

• Delegation of decision making power and directives regarding your health during your lifetime are dealt with by way of an:

  •  Enduring Power of Attorney and

  • Advanced Health Directive respectively.

• These are important estate planning documents designed to manage:

  •  your heath: and

  •  and financial matters during your lifetime before the operation of your Will.

• Contact us to discuss these matters further and / or provide instructions for us to prepare an Enduring Power of Attorney or an Advanced Health Directive.

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Estate Planning

Now is the Time to Plan

• If you haven’t given thought to how your property is to pass in the event of death, then now is the time to do so.

• Tough but careful decisions will need to be made for the benefit of you/your family/your loved ones.

• For example:

  • Are their children of another relationship?

  • Are there potentially competing interests between:

    •  former spouse and current spouses?

    • Step parents and parents

  • What will happen to your business?

  • Do you intend your spouse or children to take over?

  • Do they have the business acumen to continue the business?

  • Is it preferable that your business be sold and the proceeds of sale distributed?

  • What if you own property jointly with another who is not part of your family such as shares in a company or a partnership?

  • Do the terms of your family trust deed conflict with your testamentary intentions?

 

Benefits of Estate Planning

Having a carefully thought out estate planned:

• provides peace of mind;

• provides for better certainty for those that you love

• minimises the risk of dispute and scandal;

• provides clarity as to your objectives and concerns

 

How We Can Assist

Sarinas Legal can assist with:

• reviewing your current situation including a review of any business structures that you’re part of such as:

  • companies and shareholders agreements

• partnerships;

• Trusts

• property held jointly with other parties

• providing advice on asset structures and protection

• providing advice on prospect of challenge to your Will

 

Family Protection Checklist

• Call us for our Family Protection Checklist.

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 Contact us to find out more or to arrange a consultation.