Will Disputes Lawyers Gold Coast
Write your will
Around 60 per cent of Australians have written their wills. An estimated $2.4 trillion worth of assets is expected to be transferred from Baby Boomers (those born between 1946 and 1964) to their successors.
The population of over-21-year-olds in 2022, according to the ABS (Australian Bureau of Statistics) was 20,670,645. By that calculation, around 8,270,000 adults are without wills and some 620,000 of wills written will be contested.
What are the most common Will Disputes in Queensland?
One of the more common concerns is whether the will is valid and has been executed properly, as per the requirements of the state or territory in which the will was made. A will can be deemed invalid if it was prepared incorrectly, which can happen when people draft their own wills or use DIY will kits without obtaining advice from a professional lawyer. Points 2 and 3 below are also reasons for a will to be deemed invalid.
Another common concern is whether the will maker was “of sound mind”, in other words mentally capable, when writing the will.
Will disputes can also involve allegations that the will maker was coerced or unduly influenced into making a will that was not in their best interests.
Will disputes can also arise when there are disagreements about who is entitled to inherit under the will, or if a will is deemed to be invalid and the estate is to be distributed according to the laws of intestacy.
A family provision claim is a specific type of will dispute under which an eligible person can apply to court for provision from the estate of a deceased person, if they were not adequately provided for in the will or if the will was deemed invalid.
A Blended Family is one in which a spouse enters a relationship that involves a child/children from a previous relationship. This is becoming increasingly common in Australia and the law now allows step children to claim from step parents’ estates.
In most cases, will disputes need to be brought to court within a certain time frame, that can vary depending on the state or territory in which the will was made, and the nature of the claim. In Queensland, for example, you need to give the executor of the will 6 months’ notice, from the date of the death, of your intention to claim. And you have 9 months, from the date of the death, to proceed to a court claim.
In QLD, the rule of thumb is known as the ‘executor’s year’, which suggests that an executor should apply for a Grant of Probate within 12 months of the deceased’s death. Beyond that timeframe, expected beneficiaries of the will can apply to the Supreme Court to set a deadline, by which time the executor must have obtained probate. Should the executor fail to do so, the beneficiaries may take further action, in some cases, attempting to have the executor removed.
In cases where one of the will’s beneficiaries is also the executor, other beneficiaries sometimes contend that a suspicious or unauthorised transfer of assets has resulted from the executor failing to follow the will. Forensic accountants may be called in to determine propriety. If so, the executor would most likely be removed and/or as a result of their mismanagement, have their share of the estate downgraded.
To help you navigate the complexities of will disputes in Australia, make sure you schedule a consultation with one of our Will Disputes lawyers
WILL IN QUEENSLAND
On what grounds can you contest a will in QLD?
In Queensland, there are several grounds on which a will can be contested, including:
Lack of testamentary capacity:
A will can be contested if the will maker did not have the mental capacity to understand the nature and effect of the will at the time it was made.
Lack of proper execution:
A will can be contested if it was not executed in accordance with the formal requirements of the state or territory in which it was made.
Undue influence or duress:
A will can be contested when there is evidence the will maker was unduly influenced or coerced into making the will.
Fraud or forgery:
A will can be contested if it is suspected the will was fraudulently or forged.
Family provision claim:
An eligible person can apply to court for provision from the estate of a deceased person, if they have not been adequately provided for in the will or if the will was deemed invalid.
A will can be contested if it contains an unintended mistake that is material to the will maker’s intentions.
A will can be contested if the will maker has since revoked the will and did not execute a new one, or if the will is found to be revoked by act or operation of law.
It’s important to note that, in order to contest a will, you will need to provide evidence to support your claim. Also the court will consider the circumstances and the purpose of the will maker at the time of the creation of the will, before making a decision.
You would be wise to consult one of our Will Disputes lawyers to help you navigate the complexities of will disputes in Queensland.
PROPERTY IN QUEENSLAND
Disputes over property in the estates in QLD
In Australia, disputes about property in an estate may occur when family members cannot agree as to whether or not they should sell the family home and divide the profits, or whether the home should stay in the family for the time being.
Several steps can be taken to resolve such disputes:
Mediation is a process where an impartial third party helps the parties involved to reach agreement. This can be a less formal and less expensive option than going to court.
- Family provision claim:
An eligible person can apply to court for provision from the estate of a deceased person, if they were not adequately provided for in the will or if the will is deemed invalid.
- Court action:
When the dispute cannot be resolved through mediation, the parties may choose to take the matter to court. In this case, a judge will make a decision based on the evidence presented and the applicable laws.
The parties involved can try to negotiate a settlement between themselves, with the help of their legal representatives.
- Obtain professional legal advice:
It would be prudent for you to consult a legal professional who can guide you through the process of resolving a property dispute in an estate.
Note that the specific steps and options available will depend on the specific circumstances of the dispute and the laws of the state or territory in which the property is located.
Who pays the costs when contesting a will?
In most cases, your costs when contesting a will, are paid from the estate. If the legal challenge is baseless or made without merit, however, the costs would not be met by the estate.
There is no doubt that navigating the complexities of a property dispute in an estate in Australia will be better handled with the help of a Will Dispute and Estate Litigation Lawyer from the team at Ballantyne Law.