Inheritance Disputes, Intestacies & Mistakes
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Inheritance disputes often arise where a will is poorly drafted and either fails in whole or part resulting in intestacy or partial intestacy. In other words it is death which affects the transmission of property whether by will or partly by will or where there is no will. Irrespective whether there is a whole or partial intestacy the distribution of the estate is governed by statutory rules covering the intestate distribution. Although this scheme of arrangement is designed to assist relatives, that are potential beneficiaries of the deceased, it may run counter to their true intentions. Basically the law identifies the order of preference starting with the deceased's family which are most closely related to them. The problem may be if the deceased's true intentions were to be given effect there may be some relatives who would be excluded for particular reasons. There are many cases where people die childless and have no rapport with their parents, siblings, nephews and nieces, grandparents, uncles and aunts and cousins. Essentially an artificial statutory order has been set up to facilitate the administration and distribution of the estate designed to cover all situations but it does this imperfectly in many cases. Why would anyone wish to have their property distributed to family with whom they have nothing in common and perhaps don't particularly like? It is not uncommon to find in families that some members may be estranged or do not get on or have lost contact with the deceased yet here they are about to receive a windfall which they never had in their contemplation given their particular circumstances. Apart from this hardship may result from the application of the rules of intestacy leading to claims under the Family Provision Legislation.
Wills which are drafted by persons other than lawyers are often unclear which means that the executor or a party interested in the estate may have to apply to the court to determine what were the deceased's true intentions. Sometimes wills drafted by the uninitiated may contain mistakes and while some can be rectified, others cannot. When this occurs the will may fail as there may be an intestacy which will totally circumvent what the deceased's true intentions were, as persons will be introduced as beneficiaries who were never in their reasonable contemplation of being so when the deceased was alive. All questions involving interpretation of a will are dealt with by the equity division of the Supreme Court of NSW which is an extremely expensive way of having one's affairs dealt with after death because the law is either unclear or uncertain on any number of matters which could have been properly addressed had an accomplished lawyer been engaged to attend to them during the life of the deceased.
No one should die intestate and everyone over the age of 18 should make a will. Nationally, approximately 10% of all persons above the age of 18 do not have a will and in some states the percentage is much higher. Everyone should have a will because everyone needs to have a say in the way in which their estate is distributed rather than relying on a fallback legislative scheme which may produce a result which is neither fair nor reasonable. Essentially the aim of the legislation is adequate distribution amongst a set class of individuals, which is imperfect, as it does not take into account individual circumstances. The cost to draft a will is a small investment in the future which produces the desired outcome required by the maker at little personal expense or inconvenience. No lawyer will ever get rich drafting wills so avail yourself of this opportunity.
Costs
Normally solicitors bill their clients as the matter progresses. With some wills/inheritance disputes we are prepared to wait until the end of the matter before submitting our bill. In these cases our costs are usually paid out of the estate on settlement.
Wills disputes can become complex due to the classes of would be beneficiaries involved and the position they adopt. One of the best ways to control the costs of contesting a will is to negotiate them wherever possible to avoid both the heavy costs of litigation and any untimely delays associated with administering an estate.
We do not accept instructions in matters where the client's claim does not exceed of $100,000. Whether you be executor/executrix or a disappointed beneficiary and are concerned about a claim(s) made against an estate which you are administering or you have been overlooked by the deceased who has not made any or adequate provision for you please call LAC Lawyers to discuss. In some cases you may wish to discuss with us whether you qualify for our contingency fee arrangements.
Inheritance Disputes, Intestacies & Mistakes Articles
Succession Act Claims - Can a step child make a claim on an estate?
Date: November 10, 2010
Author(s): Jana Whitby B.A., LL.B. (Hons.)
Are you a member of a modern family which like many others consists of step-children? If so, do you wonder what your responsibility is as a step-parent to make provision from your Estate to your step-children?
Wills, Probate and Estate Disputes - An Overview of Estate Law
Date: October 08, 2010
Author(s): LAC Lawyers
Find out about estates, executors, wills, probate, inheritance, beneficiaries, and more...
Wills, Probate & Estate Disputes - Have you been left out of a Will?
Date: June 04, 2010
Author(s): LAC Lawyers
The death of a relative or an intimate is a difficult time for us all. We mourn their loss and grieve for the times that might have been. Then, the Will is read and no one contacts you to discuss your inheritance. You believed your loved one would have made provision for you in their Will and you are shocked to learn that this has not happened. What do you do?
Estate Planning - Trusts Created By A Will Funded By The Will Maker - Part 3: Types of Testamentary Trusts
Date: January 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
The main reason for creating a beneficiary controlled testamentary trust is for protection of the principal beneficiary, particularly in a situation of relationship breakdown of marriage or de facto partnership. With the beneficiary controlled testamentary trust, there is considerable protection of assets from the primary beneficiary’s hostile family members.
Estate Planning - Trusts Created By A Will Funded By The Will Maker - Part 1: The Will
Date: January 13, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
A will is a legal document in which the will maker sets out how and to whom his or her personally owned assets are to be distributed after death, the manner in which his or her estate is to be administered and the powers the executors are given.
Estate Planning - Trusts Created By A Will Funded By The Will Maker - Part 2: What is a Testamentary Trust?
Date: January 13, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Simply, a testamentary trust is a trust established by a will. Testamentary trusts can be mandatory or optional, fixed or non-fixed, flexible or protective, short or long-term, or charitable or non-charitable.
Deceased Estate Claims - Freedom to do what you want with your estate is limited
Date: May 19, 2009
Author(s): LAC Lawyers
No doubt you’ve heard people say from time to time they think they should be able to do what they like with their wills and how their estate, being their assets, is given once they die. They’ve worked hard all their lives, they’ve amassed a lot, or a little, and now, considering who should get their assets once they ‘go to a better place’, they frequently decide they’ll vent their disapproval of one or more of their children’s behaviour towards them by favouring one over another.
Estate Planning - More than just a matter of making a will - Part 1
Date: May 06, 2008
Author(s): LAC Lawyers
Many people believe that by making a will, they’ve sufficiently planned for their death. This is a good start. A lot of people don’t do even that. Some estimates suggest that as many as half the people in Australia that die each year do not leave a formal will.
Estate Planning - More than just a matter of making a will - Part 2
Date: May 06, 2008
Author(s): LAC Lawyers
As stated previously in Estate Planning - More than just a matter of making a will Part 1, preparing a will is an important part of estate planning. A thorough and well drafted will determines to a large extent how your affairs are to be dealt with when you’re gone.
Disputing A Will & Family Provision Act Claims
Date: November 28, 2007
Author(s): LAC Lawyers
Two of the more common complaints made in connection with an estate include that the deceased lacked understanding or mental capacity when he or she made the will or that a family member or dependant was "left out of the will".
What to expect when you call LAC Lawyers
Date: December 13, 2006
Author(s): LAC Lawyers
LAC Lawyers is a full service firm dedicated to the provision of superior legal services in Australia. Our aim is to provide unrivalled client satisfaction coupled with high quality service and advice. When you call LAC Lawyers our friendly reception staff will spend time with you to identify the area of law your enquiry relates to then pass you on to one of our qualified solicitor's who can help you.
Essential Will Information
Date: November 08, 2006
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
Many people today make their own wills and this approach is fraught with danger. A will is a written declaration that sets out how a person wants their assets to be distributed to their beneficiaries following death.
Making a claim against an estate
Date: September 23, 2005
Author(s): LAC Lawyers
Sometimes when a family member passes away some of the deceased’s relatives believe that they have not been adequately provided for in the deceased’s will.