LIVE ON RADIO 4CRB: Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.
With one of the largest and most experienced Wills and Estates departments in Australia, our compassionate team are ready to assist you with all matters relating to Wills, estate planning, estate administration and estate litigation. We are here to help you plan for your future and ensure your family’s interests and your estate are protected.
At Attwood Marshall Lawyers, we recognise the complexity of succession law and are highly reputed in the legal industry for our expertise in estate litigation. Our dedicated team practice exclusively in elder law and inheritance disputes and it is our renowned intent to help people battling these contentious issues.
When you are facing contentious family issues, we understand the stakes are high and how important it is to have the best family lawyer on your side. You are going through one of life’s toughest fights and what you need is considered legal action by a family lawyer who knows that your children and your home are the most important things to you.
Being involved in a dispute can be a very stressful experience, both emotionally and financially. If you find yourself in this situation, it is important to seek legal advice as quickly as possible. Like most problems, it is in our nature to push difficult issues aside and simply hope they go away. Sometimes the problem is not as serious as you think and can be dealt with quite easily with some help from an experienced dispute resolution lawyer who knows what they are doing.
Reliable and expert legal advice can make or break a successful property transaction. The right advice can even allow you to negotiate a better deal. Attwood Marshall Lawyers highly experienced property and conveyancing team ensure new home buyers and property investors receive the most professional property law services when purchasing real estate.
Our business lawyers have a wealth of local knowledge to be able to provide legal advice enabling successful business planning, operation, and succession.
With one of the largest and most experienced Wills and Estates departments in Australia, our compassionate team are ready to assist you with all matters relating to Wills, estate planning, estate administration and estate litigation. We are here to help you plan for your future and ensure your family’s interests and your estate are protected.
At Attwood Marshall Lawyers, we recognise the complexity of succession law and are highly reputed in the legal industry for our expertise in estate litigation. Our dedicated team practice exclusively in elder law and inheritance disputes and it is our renowned intent to help people battling these contentious issues.
When you are facing contentious family issues, we understand the stakes are high and how important it is to have the best family lawyer on your side. You are going through one of life’s toughest fights and what you need is considered legal action by a family lawyer who knows that your children and your home are the most important things to you.
Being involved in a dispute can be a very stressful experience, both emotionally and financially. If you find yourself in this situation, it is important to seek legal advice as quickly as possible. Like most problems, it is in our nature to push difficult issues aside and simply hope they go away. Sometimes the problem is not as serious as you think and can be dealt with quite easily with some help from an experienced dispute resolution lawyer who knows what they are doing.
Reliable and expert legal advice can make or break a successful property transaction. The right advice can even allow you to negotiate a better deal. Attwood Marshall Lawyers highly experienced property and conveyancing team ensure new home buyers and property investors receive the most professional property law services when purchasing real estate.
Our business lawyers have a wealth of local knowledge to be able to provide legal advice enabling successful business planning, operation, and succession.
Our Gold Coast estate litigation lawyers are here to help you get what you are entitled to.
If you have been left out of someone’s Will, or if you have not been adequately provided for by someone who was obligated to provide for you during their life, you may be able to make a Family Provision Application to the Supreme Court for your rightful share of a deceased person’s estate.
Be fully supported by our estate litigation lawyers when you contest a Will
Succession Law is very complex. Attwood Marshall Lawyers are proud to be highly reputed in the legal industry for our expertise in this area and our estate litigation specialists practice exclusively in their chosen field. We are here to assist our clients who are faced with the contentious issues that can arise over Wills and estates when a loved one passes away.
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Someone can contest a Will if they believe they have been unfairly left out of a Will or if they have not been adequately provided for under the terms of a Will. This can be done by making a Family Provision Claim. If there is no Will, under the rules of intestacy, a person that falls within the categories of eligibility set by legislation can make a Family Provision Claim.
To be an eligible person who may apply to the court for a family provision order, you must be:
A spouse (such as husband or wife, de facto partner, civil partner, or dependent former husband, wife, or civil partner) of the deceased person;
A child of the deceased person (this includes an adopted child or stepchild); or
A dependent of the deceased person. This could be a parent of the deceased person, or the parent of a surviving child of the deceased person under the age of 18 years, or a person under 18 years old, who was being wholly or substantially supported or maintained by the deceased person at the time of their death.
Yes! Strict time limits apply for anyone claiming family provision.
Within six months from the date of death, a claimant must notify the administrator or executor of the estate in writing of their intention to bring a family provision claim. The claim must then be filed in court within nine months from the date of death of the deceased.
If you miss these time limitations, it is at the court’s discretion if an application will be heard out of time. The onus is on the applicant to establish sufficient grounds for extending the time limit. The court will consider:
if there is an adequate explanation for the delay;
Firstly, eligibility of the person making the family provision claim needs to be established. Once this is confirmed, the legal test applied to family provision applications is as follows:
Whether adequate provision has been provided for the applicant’s proper maintenance, education and advancement in life under the Will of the deceased. In cases where there was no Will, the court will determine whether adequate provision has been provided for the applicant under the rules of intestacy; and
If any provision ought to be made from the estate in favour of the applicant.
All relevant circumstances will be examined by the court. The below factors will be considered:
The location and value of the deceased person’s estate
The relationship between the deceased person and the applicant
The applicant’s financial circumstances, which include considering their current and future financial needs
The health and financial circumstances of the beneficiaries of the estate
Whether the applicant has any mental, intellectual, or physical disabilities.
These types of legal proceedings can be expensive as they usually involve Supreme Court litigation. The costs involved in bringing a family provision application will depend upon:
The issues you choose to pursue
The extent you wish to instruct your lawyers to pursue the issues
The conduct of all parties to the litigation.
The actual costs incurred can be affected by your instructions and the conduct of the executors defending the estate. The greater amount of cooperation you receive from the executors of the estate will result in less fees overall.
Usually, the successful party in legal proceedings will have some of their legal fees paid by the other party, at the discretion of the court. Specifically, in relation to legal proceedings to contest a Will, the court may give regard to:
whether a party has failed to comply with the rules or a practice direction of the court;
whether irrelevant material was put before the court;
the size of the estate;
any offer of settlement made by the parties; and
any other factors considered relevant.
If the applicant is unsuccessful in their claim, the Judge may make no order as to costs. This means that the applicant would then be responsible to pay his or her own legal costs. The applicant may also be required to contribute to the executor’s costs of defending the proceedings.
This is why it is extremely important to seek legal advice from a lawyer who specialises in estate litigation so that your case can be assessed accordingly, and you can find out where you stand from the very start. Our Gold Coast estate litigation lawyers will advise you on the strength of your case and likely outcome, including any expected costs.
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