Estate Litigation
There are several ways to litigate over an estate. The two most common methods (to name but a few) include challenges to the validity of the Deceased’s Will and challenging the propriety and adequacy of the provision made. Both examples are explained in brief below. If you would like advice based on your specific circumstances, call us now and we would be more than happy to help you initially at no cost. For a more detailed discussion on succession laws, click on the articles tab on the above menu.
Fixed & Deferred Fees
Most people can’t afford big legal bills. You shouldn’t be worried about money when a loved one dies. In most estates we manage, fees are taken entirely from the estate once the assets become available.
The other unique approach or firm takes towards billing is that it does not provide time charged services. We only provide fixed fee quotes which never change. This avoids cost blow outs and over servicing which regrettably does occur within the legal profession.
Instant Engagement
The purpose of the meeting is to assist families to navigate the minefield of bureaucracy. If nothing more, we hope to help families understand the processes of winding up an estate from start to finish so that they are at least off on the right track.
We can assist our clients to send identification, approve quotes and cost agreements all at the press of a button. Secondly, our firm has developed long standing relationships with other professionals including but not limited to accountants, realtors, valuers, auctioneers and conveyancers.
Challenges to the validity of the Will
Challenges to the validity of wills are notoriously difficult and have high evidentiary standards. Challenges of validity often fall into one or more sub-categories. These include, lack of testamentary capacity, lack of knowledge and approval, and testamentary undue influence. Lack of testamentary capacity cases involve situations where the testator did not have the ability to understand or comprehend the process of making a will, for example, they may have advanced dementia or other severe cognitive impairment. Lack of knowledge and approval claims relate to people who sign wills but could not have known or approved of the contents of the document. They may have had testamentary capacity but may be illiterate or blind and could have been mistaken in what they signed. Undue influence cases involve situations where the free will of the testator is overborne to the extent that they could not make a will giving effect to their true testamentary wishes.
Challenges under Family Provision (Testator’s Family Maintenance) legislation
Testator’s family maintenance legislation introduces a threshold jurisdictional question as to whether or not the deceased’s Will, or the statutory intestacy provisions,[1]have made “adequate provision for the proper maintenance, support, education or advancement in life”[2]of the claimant. The above question is one of fact and relevant to the claimant’s station in life as at the date of the deceased’s death[3]The court measures the terms “proper” and “adequate” against the claimant’s station in life and the nature of the relationship that they had with deceased[4]. The court does not consider the terms “proper” and “adequate” as fixed concepts but rather as flexible or relative. The court uses “a multi-faceted evaluative judgement,”[5]which weighs up the competing needs of the parties[6]. The court has regard to the current and future needs of the claimant. The court looks through the lens of a “just and wise testator and not one who is fond or foolish,”[7]and one who is placed in a position of knowing all of the facts. A non-exhaustive list of examples of the factors have been set out in s60(2) of the Succession Act 2006 (NSW).
[2]See s6(1) FPA, Coats v National Trustees Executors & Agency Co Ltd(1956) 95 CLR 491; Singer v Berghouse(No 2)(1994) 181 CLR 201 and Bondlemonte v Blackensee[1989] WAR 305.
[3]Blore v Lang (1960) 104 CLR 124.
[4]Vigolo v Bostin(2005) 221 CLR 191.
[5]Basten JA, in Foley v Ellis[2008] NSWCA 288, at [3]; Pontifical Society for the Propagation of the Faith v Scales[1962] HCA 19 and Deveraux –Warnes v Hall[2007] WASCA 235.
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Estate Litigation, home page, Superannuation death benefit disputes, Wrongful death and fatal accidents compensation
How do you challenge a will under the Family Provision Act 1972 (WA)? What factors does the court consider? What is challenging a will called?
How do you challenge a will under the Family Provision [...]