Attwood Marshall Lawyers Estate Litigation Special Counsel Lucy McPherson joins Robyn Hyland for Law Talks on Radio 4CRB to discuss the complexities of contesting Wills across state and territory borders. As the trend of people from the southern states relocating to sunnier destinations continues, the intricacies surrounding the administration of deceased estates with assets spanning different states or even international borders have become more complex. Here, we shed light on the challenges that arise when someone’s legacy through their estate assets extends beyond state boundaries and their Will is contested.
Contesting a Will in a nutshell
When someone contests a Will, they are making what is known as a family provision claim.
A family provision claim is a legal action brought by an eligible person seeking a share or a larger share of a deceased person’s estate, than what has been provided for that person in the deceased’s Will (or under the intestacy laws applicable in that state or territory).
The laws governing family provision claims vary between each state and territory, but they generally allow eligible claimants to request further provision by way of alteration of the deceased’s Will in their favour.
When someone makes a family provision application, the court assesses the claim based on various factors, including the claimant’s relationship with the deceased, their own financial circumstances, and their need for financial support. The value of the estate assets and the competing claims of other beneficiaries are also relevant.
If the court determines that the claimant has not been adequately provided for, it may order an adjustment to the distribution of the deceased’s estate.
Who is eligible to contest a Will?
The eligibility to make a family provision claim varies depending on the jurisdiction you are in.
In Queensland, individuals eligible to file a family provision claim are:
- The spouse or de facto partner of the deceased.
- Children of the deceased, which can include biological children, stepchildren, and adopted children.
- Other dependents such as a parent of a minor child, a dependent minor child or a parent of the deceased person who was wholly or substantially dependent on the deceased at the time of their death.
In New South Wales, eligible claimants are:
- A spouse or de facto partner of the deceased at the time of their death
- A child of the deceased
- A person with whom the deceased was living in a close personal relationship
- A person who was a member of the deceased’s household and was dependent on the deceased at any time during their life
- A grandchild who was dependent on the deceased at any time during their life.
In Victoria, Section 90 of the Administration and Probate Act 1958 sets out the definition of an eligible person. Most states and territories have a similar eligibility criterion but there are subtle differences, and it is always wise to check on this crucial issue. It could mean the difference between having a claim or not.
It is important for anyone who is considering making a claim on a deceased estate to seek advice from an experienced lawyer who practices in this area so that they can assess that person’s eligibility and help them understand the process and requirements involved in making a successful claim.
Contesting a multijurisdictional estate – navigating the applicable laws
When someone contests a Will and the deceased had assets in different states or territories in Australia, the process can become much more complex.
Some of the main factors to understand in this type of scenario include:
Identifying the most appropriate jurisdiction for contesting the Will
This may not necessarily be where the individual passed away. The important factors for consideration in determining the most appropriate jurisdiction to bring a family provision application are:
- the domicile of the deceased person,
- the location of the assets (noting that this may be across multiple jurisdictions) and
- the nature of the assets involved (are the assets movable – i.e. bank accounts, shares etc, or are the assets immovable – i.e. real estate).
Domicile
Domicile is essentially the place where the deceased person regarded as their permanent home. This factor plays a pivotal role in the considerations. Sometimes, however, domicile may not be clear-cut if the individual moved between multiple jurisdictions in which case this can be difficult to determine.
Moveable vs immovable property
Succession to movable property is governed by the law of the deceased person’s domicile. Succession to immovable property, including land, is governed by the law of the place where the property is located.
The general rule is that the court in the deceased person’s domicile has exclusive jurisdiction under family provision legislation. This means that the court has the authority to handle matters concerning both movable property and immovable property within that state, and also holds jurisdiction over moveable assets located outside the state of domicile.
For example, if a person was living in New South Wales, and owned a bank account that had been opened in Queensland, the New South Wales Court would have access to the Queensland bank account to make orders pursuant to family provision legislation.
Interestingly, the court of the state where real estate is owned can exercise powers under family provision legislation to have jurisdiction over real estate located outside the state of domicile, but the court of the domicile cannot affect that real estate.
To highlight this as an example, if a deceased person lived in New South Wales but owned a property in Queensland when they passed away, only the Queensland court has the authority to use family provision legislation to make decisions about the property in Queensland. The court in New South Wales, where the person had their permanent home, does not have the power to make decisions about the property in Queensland.
As for assets located overseas, determining how such assets should be handled ultimately depends on:
- the domicile of the deceased person,
- the location of the assets,
- the nature of the assets,
- succession laws in the relevant country.
Contesting a Will with assets in different states or overseas can be extremely complicated. Each state has its own specific time limits and unique procedures for making a claim. To ensure you have the best chance of success, it’s crucial to act promptly and gain a good understanding of the laws in each state where the assets are located. To navigate these complexities effectively, seeking guidance from an experienced estate litigation solicitor is highly recommended. An experienced lawyer with the necessary state specific knowledge can help you navigate these intricacies and increase your chances of a successful outcome.
Dealing with an intestate estate across multiple jurisdictions
When a person dies without a Will, their estate is considered intestate. The administration of such an estate usually takes place in the state where the deceased had their permanent home (domicile) at the time of their death.
For example, if the deceased’s domicile was Queensland, the estate administration would typically be handled under Queensland law. However, there can be variations to this in more complex situations such as where there is real estate held in another jurisdiction.
Where there is no Will, an estate will be distributed according to the rules of intestacy. The intestacy rules govern the distribution of an estate in the absence of a Will and how assets are distributed among surviving family members, such as spouses, children, parents, and other relatives. Each state and territory has its own specific formula for distribution, which varies slightly from one state or territory to another.
It’s important to keep in mind that if someone dies without a Will in Queensland, while Queensland intestacy laws would primarily govern the distribution of the estate, there may be additional factors to consider if there are assets located in other states like New South Wales, or other jurisdictions. The administration of an estate with assets spread across multiple jurisdictions can become much more intricate and complex, necessitating legal expertise in this area to navigate the complexities effectively. It is very important that you seek advice from a law firm that specialise in this area of estate litigation and who are experienced in cross-jurisdictional issues. Attwood Marshall Lawyers have acted in thousands of matters straddling the QLD and NSW border over the years since 1946, with our Coolangatta office being a stone’s throw from the state border.
Attwood Marshall Lawyers – experts in estate litigation across all jurisdictions in Australia
If you are considering contesting a Will, it is important to have your claim assessed early on to understand the appropriate jurisdiction to bring the claim, if it is worthwhile to proceed, and confirm your eligibility to make the claim.
At Attwood Marshall Lawyers, we have one of the largest and most experienced Wills and Estates Departments, with specialist teams who practice exclusively in estate planning, estate administration, and estate litigation.
Our lawyers are well-versed at representing clients in matters throughout every state and territory jurisdiction in Australia, and particularly including Queensland, New South Wales, and Victoria.
If you would like advice about an estate, or to discuss your entitlement to make a family provision claim, please contact our Estate Litigation Department Manager Amanda Heather on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071.
Our lawyers are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney, and Melbourne.
