Estates and Estate Disputes | Contest a Will in QLD
Estates and Estate Disputes can be tricky from a legal perspective. It’s important to understand that once a loved one has passed away, it is essential to seek legal advice in administering the Estate.
This is especially important if you have been appointed as Executor of the deceased’s Will. If you have been appointed an Executor of an Estate, you are responsible for the oversight of its administration and the Estate must be administered in a prudent manner which serves the best interests of the beneficiaries.
If the deceased died without leaving a Will (or a valid Will), the deceased is said to have died Intestate. If this occurs, then it will be necessary for letters of administration to be obtained from the supreme court and the rules of Intestacy will apply to the distribution of the Estate. At Davoren Associates, our Wills and Estate Lawyers have extensive experience in managing Estates or Intestate Estates including the prompt collection of all assets, careful distribution of assets to the beneficiaries under the Will (or following the rules of Intestacy) and finalising the affairs of the Estate.
Depending upon the size and nature of the Estate assets it may be necessary to apply to the Supreme Court for a Grant of Probate or Letters of Administration (if the deceased died without a Will or valid Will).
As the requirements for obtaining either a Grant of Probate or Letters of Administration can be quite complex and technical, our experienced Estate Lawyers on the Gold Coast will be able to assist you in making the necessary applications to the Supreme Court.
We can take you through this process smoothly, efficiently and cost-effectively, and will ensure that the correct procedures are adhered to, without delays or additional expenses.
Who can make a claim?
There are only certain categories of people who can make a claim against an Estate under section 41 of the Succession Act 1981 (QLD) (“the Act”). The categories of eligible persons are limited to:
– A Spouse (including a husband, wife, de facto partner, a former spouse who was still dependant upon the deceased for maintenance).
– A Child (including biological, step-child or adoptive child).
– A Dependant (including a person who was wholly or partially dependant upon the deceased at the time of their death and can include a parent of the deceased, a parent of the deceased’s child under the age of 18 years or a person who is under the age of 18 years).
There are strict time limits to contest a Will. Notice of the intention to bring a claim against the Estate must be given to the Executor of the Will within six (6) months of the deceased’s death and the application must be filed in either the District Court or the Supreme Court within nine (9) months of the death of the deceased. If you fail to bring a claim within these time limits your opportunity to contest the Will may be lost.
Ordinarily, the court will not grant an extension of time to bring a claim against the Estate unless there are very good reasons for not bringing the application within the time limits. We can assist you in ensuring that all matters are dealt with in the correct time frame. If you believe that you have a claim to an Estate, then contact one of our experienced lawyers immediately to obtain quality advice which will set you in the right direction.
Issues that are considered
To contest an Estate and bring a claim for proper and adequate provision, the court will need to look very carefully at the merits of the claim against the Estate and Will take into consideration:
– The size of the Estate.
– The last testamentary wishes of the deceased (how the estate was intended to be distributed under the Will).
– The strength of the Applicant’s claim on the estate (including the financial situation of the Applicant, the health position of the Applicant, the relationship between the Applicant and the deceased and the character and conduct of the Applicant particularly if there was any disentitling conduct by the Applicant).
– The position of the beneficiaries of the Will (including the financial situation/s of each beneficiary, the health position/s of the beneficiaries and the relationship between the beneficiaries and the deceased).
– The needs of the Applicant compared to the needs of the beneficiaries in the Will.
Just because a claim is brought against an Estate does not necessarily mean that it will succeed and the wishes of the deceased are not carried out. The starting point for the distribution of an Estate is usually considered by the Court to be the deceased’s last Will, there is no standard scale of distribution between family members, for example, a 50/50 split between two siblings. Each claim is assessed individually on its facts.
Our Estate Lawyers on the Gold Coast can assist you in bringing an application against an Estate or assist in defending a claim against an Estate if you are an Executor or a beneficiary of a Will being contested. Our team at Davoren Associates has extensive knowledge of Estate disputes and will be able to provide you with up to date and helpful advice in your time of need.
AREAS OF EXPERTISE
- Administration of Estates
- Assisting Executors to administer Estates
- Estate Disputes (Family Provision Applications)
- Probate Applications or Letters of Administration
- Assisting in the collection of Death Benefits / Superannuation Entitlements
- Preparation of Wills
- Preparation of Memorandum of Wishes
- Testamentary Trusts
- Enduring Power of Attorney
- Advance Health Directive
Our office is located in Surfers Paradise and our solicitors are experienced to help both our Queensland and New South Wales clients. We offer a complete range of legal expertise, a skilled support staff and commitment to give you professional legal advice and value for money. Surrounding suburbs of Broadbeach, Southport, Mermaid Beach, Bundall and Main Beach have easy access to our Surfers Paradise office.
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