Challenging a Will or Deceased’s Estate
Types of Challenges
An estate may be challenged on the following:
the deceased did not have capacity at the time he/she made their Will and therefore the Will is not valid;
- a person unduly influenced the deceased to make his/her Will a particular way (ie the Will has favoured one person over another person due to the influence of the favoured person) and therefore the Will is not valid;
- the executors are taking too long to administer the estate and/or have breached their fiduciary duties to the beneficiaries and therefore an application to remove the executors may be made;
- the nominated executor/s improperly dealt with the deceased’s assets during their lifetime and accordingly, there is substantial risk if they are not removed as executors of the estate;
- overturning a transaction made by the deceased during his/her lifetime (based on either capacity issues or undue influence) so that the asset falls within the estate assets;
- an application for further provision from the estate (also known as a family provision application (FPA) or a testators maintenance application (TMA)).
Family Provision Applications
Family provision applications are the most common challenges against estates. They are made if a person feels they have not been provided for sufficiently by the deceased’s Will or the intestacy rules, whichever applies.
These types of claims can only be made by certain classes of people:
- the deceased’s spouse (including married, de facto and same sex);
- the deceased’s children (including blood, adopted and stepchildren); and
- the deceased’s dependents (someone who was financially dependent on the deceased – such as a grandchildren under 18 living with their grandparent).
There are strict time limitation periods which must be met if someone is to make a claim against an estate. An applicant must provide the executor with written notice of their intention to make a legal claim within six months from the deceased’s date of death. By law, they must also then file their application in the courts within nine months from the deceased’s date of death.
Most family provision applications settle out of court at either conferences or mediations.
Generally the costs of any estate litigation is payable from the estate proceeds. This includes both the applicant’s costs as well as the legal personal representative’s costs.
Our firm will consider taking on a legal matter in estate litigation on the basis that we are paid from the estate proceeds on completion rather than upfront fees. We are happy to discuss payment arrangements with you.