Attwood Marshall Lawyers Estate Litigation Senior Associate Martin Mallon joins Robyn Hyland for Law Talks on Radio 4CRB to discuss disputes over estates where there is a question as to if the person disputing someone’s Will is in fact “family” or otherwise entitled under the Will.
Contesting a Will when there are questions over paternity or maternity
It is not uncommon for interesting cases to pop up in the media where people come out of the woodwork claiming they are the long-lost child of a high-profile or famous person who has just passed away. As outlandish as some of these claims may be, these types of cases can and do arise, even in everyday society.
Estate disputes involving questionable paternity or maternity have been around for many years.
When Elvis Presley died, there were numerous people claiming to be his biological offspring hoping to claim their share of his fortune.
The same happened after Prince died in 2016. Many people came forward and claimed to be Prince’s long-lost child, and over 700 people also claimed to be Prince’s long-lost sibling, all in an attempt to gain access to his valuable estate.
In most high-profile cases, there is little to back up these claims and they don’t make it to the courts. In cases that have merit, an entitled person can seek his/her/their legal entitlement under a deceased person’s Will or under the rules of intestacy. Alternatively, an eligible person can seek adequate provision from an estate by way of a Family Provision Application for their proper maintenance and support.
Who can contest a Will?
To be able to contest a Will, otherwise known as making a Family Provision Claim, you need to fall within a category of “eligible persons”.
It is not open slather for anyone to put their hand up and demand they want to inherit from someone else.
In Queensland, an eligible person includes:
- A spouse or de facto partner (including a civil partner)
- A child (including stepchild or adopted child)
- A dependant (any person who was being wholly or substantially maintained or supported by the deceased at the time of their death, including;
- A parent of the deceased
- The parent of a surviving child under the age of 18 years of the deceased
- A person under the age of 18 years
Click here to view who is considered an “eligible person” in other states.
When an eligible person makes a Family Provision Claim, the Court will decide if that person should receive a greater share of the estate by looking at all the facts of the case.
These types of disputes can come about for a variety of different reasons, from parents leaving children out of their Will entirely, or not providing sufficient provision for one child over another, or even from people simply wanting more than what they were given in the Will. These types of disputes can also arise when an illegitimate child surfaces, following the death of their biological mother of father.
A recent Australian case by a person claiming to be entitled to a share of an estate
Attwood Marshall Lawyers are frequently engaged by clients who claim to be entitled as a beneficiary under a deceased person’s Will (or under the rules of intestacy) or otherwise eligible to contest the Will of someone who has died. A person who claims to be entitled to a share of a deceased person’s estate must prove his/her/their relationship to the deceased for the claim to be successful.
In a recent case, the firm was engaged by a client who had suspicions that the person who raised him was not his biological father. The client raised his suspicions with his mother however she refused to disclose information about the identity of his biological father.
The client subsequently obtained a DNA test that confirmed the person who raised him was not his biological father.
Upon producing the DNA results to his mother, she then disclosed that another man was in fact his biological father. Shortly after this was disclosed, the alleged biological father died.
The man sought information about the estate of his purported late father from his two siblings including a copy of the Will.
The children of the deceased man refused to provide the information on the basis that they did not identify the man as their brother or the true biological son of the deceased. Under legislation in each jurisdiction in Australia, only an “entitled person” is entitled to a copy of a deceased person’s Will.
At this stage, unfortunately there was no evidence to definitively prove the deceased was the biological father of the client other than the mother’s claim that he was.
To protect the man’s best interests, a caveat was filed to prevent the distribution of the estate until the question of parentage could be established. To resolve the dispute, the client and his alleged brother agreed to submit to a DNA test to determine parentage.
The DNA test established that our client was 99.9% more likely to have the same father as his alleged brother. In other words, it was established that the man was 99.9% more likely to be the son of the deceased.
In this case, the deceased person did not have a Will, therefore under the rules of intestacy the client was entitled to an equal share of the estate.
Attwood Marshall Lawyers have been granted permission to share the details of this case, however names of parties have been omitted to protect their privacy.
Declaration of parentage
In Queensland, a person who alleges that the relationship and child exists between the person and another named person may apply to the Supreme Court of Queensland seeking a declaration of parentage and the Court may, if it is proved to its satisfaction that the relationship exists, make the declaration whether the parent or the child or both of them are living or dead.
The DNA testing process
There are several DNA tests available that can be used to formally or informally establish if a person may be the biological son, daughter or related to a deceased person.
There are do-it-yourself or “DIY” DNA tests that can be used to determine parentage. Whilst these types of tests may be cheaper than formal legal DNA tests, they do not have the same oversight.
The Status of Children Act 1981 (Qld) (“the Act”) and ancillary Regulation outlines the process involved with respect to carrying out a parentage testing procedure under a parentage testing order otherwise known as a legal DNA test.
This legislation outlines the way in which samples must be collected, packaged, and tested.
Samples collected using home testing kits do not satisfy legislative requirements. This means the results obtained from DIY testing kits cannot be used for legal purposes.
In order for a DNA test to be legally submissible, it must be carried out at a laboratory that is accredited by the National Association of Testing Authorities, Australia (NATA) and in accordance with standards of practice.
The person collecting the sample from the participant must be a registered medical practitioner or employed at a pathology practice, hospital, or a parentage testing practice. All parties involved must complete a formal statement outlining a number of matters to comply with the requirements under the legislation.
To satisfy the chain-of-custody requirements and ensure the samples are not tampered with, the medical professional must ensure that the sample is placed in a container immediately after it has been collected, in the presence of the donor. The container must be sealed appropriately so that if it were opened after being sealed, the fact the container has been opened would be evident to a person inspecting the container.
By following this strict protocol in collecting DNA formally, all parties involved can have confidence in the integrity of the DNA result.
There may be other evidence available to persons who seek to pursue an entitlement or eligibility to contest a deceased person’s estate other than DNA which can be explored by a lawyer who specialises in this area of law and can provide appropriate advice.
Time limitations
There are strict time limitations that apply to anyone seeking to make a claim on an estate.
In Queensland, a person must give notice on the executor or administrator of the estate of their intention to make a claim within 6 months of the date of the death.
Following this date, the person must then make a formal family provision application within 9 months of the date of death.
In rare circumstances a person can seek leave of the Court to seek an extension on these time limitations, however, you must show special reasons as to why leave ought to be granted.
If you believe you are the child of someone who has passed away and this has not been established, and you intend to make a family provision claim, it is important to act quickly and place the estate on notice of your claim as soon as possible to stop the distribution of the estate.
If you wait too long to enquire about the estate or seek legal advice about your rights, and the estate has already been administered, you may lose your entitlement or right of action forever.
The DNA test has proven paternity or maternity – what am I entitled to?
If someone dies without a Will, then the rules of intestacy will apply.
In Queensland, the estate will first go to the next of kin, which in most instances is the deceased’s spouse or de facto partner, and children.
If there is no spouse, the estate will be shared equally among the children.
If there are no children, then the estate will go to the deceased’s parents, brothers or sisters, nephews, and nieces. Following that, the estate will then go to grandparents, uncles, aunts, and cousins.
Each state and territory have its own unique Succession Law and will determine how an estate will be distributed.
If the deceased had a Will and a party seeks further provision from the estate, the Court will consider a range of factors in determining if that person is entitled to further provision and the amount they ought to receive.
Some of the considerations include, but are not limited to:
- The size of the estate
- The financial situation of the applicant and other beneficiaries
- The health needs of the applicant and other beneficiaries
- The relationship each party had with the deceased
- Obligations the deceased had to the applicant
Each case is determined on its own facts and merits.
Attwood Marshall Lawyers – Experts in Estate Litigation and Contesting Wills
If you believe you may be entitled to a portion of an estate or want to seek a greater share of someone’s estate, it is imperative to seek advice from an experienced estate litigation lawyer as soon as possible. Any delay may seriously prejudice your rights and interests.
Succession law and estate litigation is an extremely complex area of law and every state’s law differs slightly. It is important to talk to someone who knows what they are doing and to act quickly as time limitations do apply, and if you wait too long, you will likely miss your opportunity altogether to make a claim.
We often get enquiries from people who want to discuss the estate of a deceased who passed away 5 or 10 years ago, and they believe they should have been entitled to a share, or greater share, of that estate. Unfortunately, when you wait that long to try to find out what you may have been entitled to, the estate has likely already been distributed and you cannot make a claim. The Court has very strict rules when it comes to making inheritance claims.
To discuss your unique situation, 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 any time.
We have the experience and expertise to take on matters in any state or territory. Our lawyers are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney, and Melbourne.
