Q: When someone dies and they leave little or no provision for a family member in their Will, can those Wills be contested?
Yes, and in fact, it occurs so often that lawyers generally refer to these types of claims as black sheep claims. In other words, the family member who has been left out maybe for good reason find themselves without anything from their mum and dad’s estate and decide to try and do something about it. It’s a growing area of litigation. I’m joined by Jeff Garrett, the practice director at Attwood Marshall Lawyers, a firm that handles these types of matters in both Queensland and New South Wales.
Q: What are the types of disputes that you see in relation to estate litigation generally in both of these states?
Yes, it’s a varied sort of field here, but in any family, you can have a will or no will, depends on what’s going on. Any of the designated beneficiaries in either state, Queensland or New South Wales, and they’re a little bit different. Family members and or spouses can usually bring a claim to contest an estate if they’ve been left out of a will, or if they feel that they haven’t been provided for as much as what they feel they should have in the will, or alternatively, in the case of where someone dies without a will if the laws of intestacy deem that the estate goes to certain a certain branch of the family or certain beneficiaries, then they can also apply to the court to have further provision made for them from the estate.
Q: How can you minimise the risk of a Will being contested?
People will sometimes do their own wills or see a lawyer who don’t specialise in this area. And they will simply cut out a child or a family member because of their bad behaviour or some reason why they want to do that. And they don’t really weigh up. Well, if I do that, what’s going to happen? Is it encouraging that claim being made? So that’s one thing that they can do and one thing they can do is make some provision for them to make it less likely that their claim will succeed as much as it may gall them to have to leave them, something that could well be enough to forestall a claim being made against the estate by them.
The other thing that they can do is they can structure their assets such that the person likely to bring a claim can’t get it, that for whatever reason and there are various strategies that you can use, joint tenancies, superannuation funds, etc where you can circumvent people’s claims. But you need to be very careful about how you structure those things. Really look carefully at your estate planning.
Q: Are a lot of these Family Provision claim that can be done on a ‘No Win, No Fee’ basis? How are most of these applications executed?
Well, the majority of them are done on a no win, no fee basis, particularly for those beneficiaries who have financial need and don’t really have a lot of assets or money to engage or pay a lawyer to do it. The good thing is that there are cases where people are genuinely cut out of estates through some sharp practice of their siblings. You’ve heard of the almost like revolving lawyers where one trial will take their elderly parent to a solicitor and have the will changed in their favor. The other trial will come pick them up and take them to their lawyer and get it changed again. And it’s really sad what can happen there. But there are cases of genuine claimants who have been wrongly left out of the will, and maybe their parent is getting a bit older, a bit senile and cut them out. I had one case where they cut them out completely of a large estate because the daughter didn’t ring her on Mother’s Day and had been a loyal child for, you know, 40 or 50 years prior to that. So there are genuine claimants and luckily, most lawyers take these cases on a no win, no fee basis.
Q: Is there a time limit to make a claim?
In Queensland, you have six months from the date of death to give notice of your intention to bring a claim, and you must then issue the court proceedings within nine months of the date of death. In New South Wales, you have 12 months from the date of death to lodge a claim. There’s no need to give any notice of doing it. You just need to file it within 12 months.
Q: If somebody is wanting to consider contesting a Will, is time of the essence?
Absolutely. Just get in, see a lawyer. We have had some very sad cases where people have come in twelve, 18 months after their parent has passed away due to, you know, they’ve been too emotionally frail to deal with it or whatever the case. And in a lot of situations, they’re simply out of time and don’t have sufficient excuse to ask the court to give them leave to do it out of time. There is provision for that. It’s a bit easier, a bit easier in New South Wales to do than it is in Queensland. But generally speaking, unless you’ve got a really good reason for not complying with those time limits, the court will not grant you leave to proceed outside those timeframes.