Estate Claims Lawyer in Birtinya

People arrive saying they want to "contest the will". That phrase covers three different proceedings, and choosing the wrong one wastes the time limits.

A family provision application accepts that the will is valid and asks the court for adequate provision from the estate. A validity challenge says the will should not stand at all, on grounds such as lack of capacity, undue influence or defective execution. A contested administration dispute says the will is fine but the executor is not administering it properly. Each has its own evidence and its own path through the Supreme Court of Queensland.

Blended families, de facto relationships and adult stepchildren are common on the coast, and people assume that either everyone or nobody outside the immediate family can claim.

Under the Succession Act the people who may apply for family provision are a spouse, which includes a de facto partner in defined circumstances, a child, a stepchild in defined circumstances, and a dependant. Eligibility is a threshold question: without it there is no claim, whatever the merits.

Grief, distance and the hope that things will sort themselves out mean many people seek advice months after the death.

Written notice of an intended family provision claim should generally reach the executor within six months of death, and the court application should be filed within nine. The court has a discretion to allow a late application, but that is a discretion, not a right, and an executor who has not received notice may lawfully distribute.

Coast estates often include a jointly held home, an investment unit, superannuation and sometimes a family trust or company, and the family assumes all of it is "the estate".

Assets held as joint tenants, superannuation and assets held in a trust or company may pass outside the will and outside the estate a claim is made against. What forms part of an estate is a question of general law that has to be answered before anyone can say what a claim is worth. This is general legal information, not financial, tax or superannuation advice.

Executors are usually a spouse or an adult child, and the claim often comes from a sibling or a step-relation.

An executor has duties of their own, must respond to the claim, and can be personally exposed by distributing the estate too early. At the same time the executor is entitled to defend the will-maker's decisions, and most claims settle at mediation, which the parties are generally required to attempt before a final hearing.

Many coast estates are one house and some savings, and the person thinking of claiming is worried the costs will eat what is being sought.

Costs are real, a claim commonly takes in the order of six to eighteen months depending on the estate and whether it settles at mediation, and the outcome is discretionary. There is no rule that an estate below a certain value cannot be claimed against, and no figure is given here.