Our team are constantly asked a lot of questions ranging from topics such as Contesting an Estate, Deceased Estates and Estate Litigation, to preparation of a Will. Below are some of our Frequently Asked Questions which highlight the many different areas of law, within Wills and Estates.

What do I do if I feel I have been unfairly left out of a Will?

Contesting a Will of a deceased estate is a difficult and emotional decision to make. If you are entitled to make a claim against a deceased estate, careful consideration needs to be given to your prospects of success. If you have been unfairly left out of a Will an application to the Court, known as a Family Provision Application, can be made on your behalf. In this Application you will challenge the Will and ask the Court to make an order that you are properly provided for from the deceased estate.

If I am not happy with the Executor of a Will, what can I do?

If you feel that the executor of a Will is not carrying out his or her duties properly, the executor has a conflict of interest, or is acting improperly, it may be necessary to have the executor removed by the Court. The Courts have wide powers to remove a personal representative/executor however it is in the Court’s discretion as to whether the executor is removed. The Court will consider mismanagement of a deceased Estate and also misconduct of the executor in an application.

Who pays my legal costs for challenging a Will?

Generally speaking, the legal costs for challenging a Will may be paid from the deceased Estate. This however is not always the case and if the executors of a deceased Estate do not agree to pay your legal fees for contesting a Will you may need to apply to the Court for costs to be paid. There are a number of decisions from the Supreme Court dealing with this issue if you are unsuccessful in challenging a Will the Court may order that you pay the costs of the deceased Estate. We will give very detailed consideration to your claim before contesting a Will so that you are fully aware of your legal position before you contest a Will.

How do I contest a Will?

To contest a Will careful consideration needs to be made to the reasons as to why you would do so. You may contest a Will based on the capacity of the Willmaker, or if you have been left unfairly out of a Will. An application to the Court will be necessary to challenge a Will. As very strict time limits apply to lodging an application to contest a Will of a deceased Estate, it is important that get legal advice urgently.

What do you do if the Will is not fair?

If you feel that you have been unfairly left out of a Will it is important to obtain legal advice from a lawyer who is experienced in challenging Wills of deceased Estates. To properly contest a Will you will need to make an application to the Court seeking an order that you are properly provided for from the Will that you are disputing.

By challenging a Will, do I have to go to Court?

Most deceased Estate disputes settle outside of Court. If you contest a Will and commence Court proceedings, the Court will set directions outlining the steps that need to be adhered to before the Court will set the matter down for a Trial. One of these steps is a mediation conference where all parties to a Will dispute meet to try and resolve the dispute over the deceased estate. A vast majority of claims settle at mediation. If your claim does not settle at mediation it will be set down for Trial and you will need to go to Court in that case.

Are there time limits for contesting a Will?

There are very strict time limits for challenging a Will in Queensland. You must advise the executor of the Will of the deceased Estate within six months from the date of the deceased’s death that you intend to make a claim. Court proceedings must then be filed within nine months from the date of death. If you do not comply with these strict time limits, you may lose your ability to challenge a Will of a deceased Estate. Other time limits apply in different states. It is therefore very important that you obtain legal advice as soon as possible.

Can I change a Will based on undue influence?

If you feel that the deceased person was under pressure or influence when making their Will, you may be able to contest the Will based on undue influence. Detailed consideration will need to be given to this issue, and evidence obtained, before a Will is challenged on this basis. Courts can however overturn a Will if undue influence has been exercised on a deceased at the time that a Will was made.

Can I challenge a Will based on capacity?

You may be able to challenge the validity of the last Will of a Deceased, on the basis that at the time of making the Will, the Will maker did not have testamentary capacity. There are a number of tests a Court will apply to determine whether a Deceased had testamentary capacity at the time the Will was made. Further, a Court may also need to review the Will maker’s medical records to assist in the process. See my blog articles on challenging a Will based on capacity. There are also other ways of contesting a Will in addition to capacity and it is important that you consider all options when you wish to dispute a Will or contest a Will.

I was financially dependent on the deceased. What are my options?

If you were financially dependent on someone prior to their death and have been unfairly left out of a Will, then contesting a Will or disputing a Will may not be your only option. The deceased person may have had superannuation death benefits payable to relatives or anyone who was in a financially interdependent relationship with the deceased. It is important that someone who was financially interdependent on the deceased makes a claim for any of the deceased’s superannuation death benefits payable. Depending on whether there is a binding death benefit nomination in place, and how the trustee of a superannuation fund intends to pay the superannuation funds, you may also need to consider lodging a family provision claim or contesting a Will to protect your interests (for example if the superannuation monies are paid into the Estate funds, rather than to you directly).

I’m estranged from my parent/s, can I claim against their Estate?

The relationship between a parent and a child is only one of the factors a Court considers when determining the amount to be awarded to someone who is challenging a Will or claiming against an Estate. If the child claiming against an Estate or challenging a Will is financially worse off than other siblings who were close to the Deceased, then that child may potentially have a stronger financial claim to the Estate than the siblings who were close to the Deceased. The reason for this is that the financial need of someone that contests an estate is also a factor which a Court considers. If someone is contesting a Will, each case will be determined on its merits. For further information, see my blog articles relating to a stepson left out of a Will and an Estranged Child Left Out of a Will.

Can I contest a Will after probate has been Granted?

Even if Probate has been granted by a Court, you still have to place the Executor or Personal Representative on notice of your intention to contest the Will. It is important that if you intend to challenge a Will, you place the Executor or Personal Representative of the Estate of the deceased on notice within six months of the death of the deceased. If you have placed the Executor on notice of your intentions to contest a Will, you then have 9 months from the date of death  in which to lodge your Court proceedings. It is important that you place the Executor on notice within the time limits to ensure that your rights are protected. This is extremely important as an Executor or Personal Representative who is placed on notice of your intention to dispute a Will, is personally liable for any distributions of the Estate made.

What is and isn’t included in a deceased Estate?

It is important that an Executor or Personal Representative considers all assets and liabilities (including taxation debts) that a deceased may have had at the time of their death so that an accurate value of the Estate can be established. Any properties owned by the Deceased in their own name, or as tenants in common, form part of the deceased’s Estate. Bank accounts, shares, vehicles, memorabilia and personal items in the deceased’s own name also form part of a deceased Estate. However, whether a superannuation fund forms part of a deceased’s Estate will depend on whether the deceased had a binding death benefit nomination in their superannuation fund. Further, a trustee of a superannuation fund may decide to pay the funds to a deceased Estate rather than a family member. If that happens, the superannuation fund will also form part of the deceased’s Estate. Assets in the name of a company, trust, or as joint tenants, do not form part of a deceased Estate, and therefore may not be liable to a claim, in Queensland. Different rules apply in other states.

What happens to a deceased Estate if there is no Will?

If there is no Will, a deceased Estate will be dealt with under the rules of intestacy. There are a number of different rules of intestacy; here are just a couple of them:

  • If the deceased is survived by their spouse and children, their spouse will receive the household chattels (furniture, whitegoods etc), the first $150,000 of the Estate and either half or a third of the residue of the Estate, depending on whether they are survived by one or more children. The children will receive the balance of the Estate equally between them.
  • If the deceased did not have a spouse or children, their Estate will be divided with 50% allocated to each parent, even if the deceased was an estranged son or daughter.

My family is fighting over a Will, what can be done?

If there are many parties contesting a Will, it’s a good idea to consult estate planning lawyers who are experienced in dealing with Will disputes. They will be able to assist you in making sure you are adequately provided for. If a family dispute over a deceased Estate cannot be resolved amicably, you may need to apply to the Court to have the dispute resolved.

Am I entitled to challenge a Will of a deceased Estate?

Whether or not you can challenge a Will of a deceased Estate depends on how you are related to the deceased. If you are the deceased’s spouse, de facto, child (including step-child) or dependent, then you may be entitled to challenge the Will if you are left out of it entirely. You may also have grounds to contest the Will if you can prove you were not adequately provided for, such as if your sibling was allocated a bigger share of the Estate than you.

Who can claim against a deceased Estate?

People who may be able to claim against a deceased Estate include the deceased’s:

  • Spouse;
  • Children (including step-children and legally adopted children);
  • Dependents;
  • De facto.

I am the de facto partner of the deceased. Am I entitled to a share of the Estate?

As the de facto partner of the deceased, you may be entitled to a share of the deceased’s Estate. We have previously written a blog on this topic, which you can access here. To determine whether you can make a claim, the Court will consider:

  • The nature and extent of your common residence (whether you lived together);
  • The length of your relationship;
  • Whether or not a sexual relationship existed at some stage in the relationship;
  • Whether or not you were financially dependent or interdependent on the deceased;
  • Whether you jointly owned any property;
  • The degree of your mutual commitment to sharing a life together;
  • Whether you both cared for any children together;
  • Whether you shared household tasks and chores;
  • Whether you were known to your friends and family as a couple.

What is Estate litigation?

Estate litigation occurs when people are fighting over a deceased Estate and cannot agree on who the Estate is distributed to, or how it is distributed. It also includes fighting over the validity of a Will, including issues regarding capacity of the Will maker. A lawyer experienced in estate litigation is the best person to handle an estate litigation claim. Estate litigation often involves the Court system as the dispute is brought before a Judge to decide a fair outcome, if the dispute over the deceased Estate cannot be resolved.

I’m from a blended family, can I claim against an Estate?

Stepfamilies can complicate deceased Estate administration but the law does have some rules that determine who from a blended family has grounds to contest a Will. If you are from a blended family, you may be able to claim against an Estate, but only if you are the stepchild or adopted child of the deceased.

What happens to missing superannuation or lost superannuation of a deceased person?

An Executor or Personal Representative of a Deceased Estate should always consider whether a Deceased had any missing superannuation or lost superannuation. It is important to locate any missing superannuation, as certain people may be able to claim superannuation death benefits from the lost or missing superannuation accounts.

Further, if a family member who knows about the existence of the superannuation fund is already claiming the superannuation funds, the Executor, Personal Representative and any other potential beneficiaries may need to take urgent action to protect their rights.

How do I search for a deceased’s superannuation, lost superannuation or missing superannuation?

An Executor or Personal Representative should contact the Australian Taxation Office to determine whether a deceased had missing superannuation or lost superannuation. The deceased’s personal papers and the knowledge of the deceased’s family members may also assist to locate any lost superannuation accounts or unclaimed superannuation accounts held by a deceased.

How do I lodge a Superannuation Death Benefit Claim?

Once a Deceased’s superannuation fund has been located, it is important that anyone wishing to claim monies from a Deceased’s superannuation fund lodges a superannuation death benefit claim, as soon as possible. The trustee of a superannuation fund may pay the monies to a person nominated under a binding death nomination, the Estate (in which case the funds may form part of the Estate), to the person claiming the superannuation death benefit, someone who is interdependent on the deceased, or any other person who wishes to claim an entitlement to the Deceased’s superannuation.

When lodging a superannuation death benefit claim, it is important that you consider whether you may also need to contest the Estate, or dispute the Will (see below). For some of the things to consider when lodging a superannuation death benefit claim, see my blog article “Should I lodge a Superannuation Death Benefit Claim?”

Interdependency and Superannuation Death Benefit Claims

When lodging a death benefit claim, you need to ensure that your claim contains all of the information which a trustee requires so that you receive payment over any other party. Some of these factors include your relationship with the deceased, any shared finances with the deceased,  and any financial and non financial support being provided by the deceased.

See my blog article – “Interdependency and Superannuation Death Benefit Claims“.

To avoid any delays in the trustee’s decisions, and to ensure your claim is as strong as possible, it is important that your claim is prepared properly from the outset. It is also important to consider that if you do not have a strong claim to the deceased’s superannuation benefits, you may have other avenues for claiming monies from the deceased Estate by challenging the Will or disputing the Will.

How do I object to a Superannuation Death Benefit Payment?

If you have been contacted by a family member, or a trustee of a deceased’s superannuation fund about a proposed payment of a deceased’s superannuation death benefits, you must read the documents carefully. If you agree to sign away any rights you have to the death benefit to another beneficiary, you won’t be able to make any further claim on the superannuation monies once you sign the form. If you do not agree with the proposed payment, or if you feel that you were financially dependent on the deceased, you should urgently consider objecting to the proposed superannuation death benefit payment.

It is important that an objection is prepared thoroughly so that you can properly stake your claim to the superannuation death benefits. You may also need to consider contesting the Estate or disputing the Will in order to protect your rights (in the event that you do not receive any of the superannuation death benefit payments). There are strict time limits for contesting the Will or disputing the Will which you need to be aware of.

See my blog article – “Objecting to a Superannuation Death Benefit Payment”.

A family member has lodged a claim on a deceased’s Superannuation. Should I do the same?

Yes. If a family member has lodged a claim for a deceased’s superannuation death benefits, there is no guarantee that the trustee of the superannuation fund will pay the monies to that family member (even if they are claiming the money on behalf of all family members). The reason for this is that the trustee of the superannuation fund will look at the financial and non financial interdependency between parties, whether there is a valid binding death benefit nomination in place, and the person’s individual circumstances.

The trustee may also decide to pay the superannuation funds to the Estate. If the funds are paid to the Estate pool, then they will be distributed according to the Will, or if there is no Will, under the rules of intestacy. If there is a risk of monies being paid to the Estate, you may need to consider contesting or disputing the Will in order to protect your interests. Accordingly, depending on how you would like the monies to be paid, it is important that your claim to the Trustee of the superannuation company is prepared properly, in conjunction with your right to challenge the Will or contest the Will. See my blog article “Interdependency and Superannuation Death Benefit Claims”.

Does superannuation form part of a deceased’s Estate monies?

This depends on whether the Trustee of the Deceased’s Superannuation Fund pays the death benefits to the Estate. If this occurs, the superannuation monies form part of the Estate pool and will be distributed in accordance with the Will, or if there is no will, in accordance with the Rules of Intestacy. For example, the Trustee of the superannuation fund may receive numerous death benefit claims from potential dependents or beneficiaries. However, the Trustee may still decide to pay the monies to the Estate rather than directly to anyone claiming the superannuation death benefits.

If you are a beneficiary under the Will, then the superannuation monies paid to the Estate will be paid to you in accordance with your entitlements under the Will, or if no Will, in accordance with the rules of Intestacy. However, if another beneficiary has claimed the superannuation death benefits directly, then they may receive the superannuation death benefits directly and the monies will not form part of the Estate pool or your entitlements under the Will. Accordingly, it is important to ensure you consider claiming superannuation death benefits in conjunction with your rights under an Estate.

Contesting a Will and claiming Superannuation Death Benefits

When claiming superannuation death benefits, you may also have to dispute the Will or lodge a family provision claim – depending on whether the Trustee of the superannuation company pays the death benefits to the Estate. Further, a Trustee can sometimes take many months to determine how death benefits will be paid depending on the number of objections received. You need to ensure that while waiting for the superannuation trustee to determine who they will make payment to, that you do not miss out on the time limit for disputing or contesting a Will.

If you wish to contest the Estate or dispute the Will, you must place the Executor or Personal Representative on notice of your intentions within 6 months of the date of the deceased’s Death in Queensland. If you do place the Executor or Personal Representative on notice, you then have a 9  months from the date of death to commence court proceedings. Different time limits apply in other states. Accordingly, it is important that you obtain advice on lodging your superannuation death benefit claim properly from the outset, in conjunction with your entitlements from the Estate, in order to avoid delays which could result in you missing time limits for disputing a Will.

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