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When someone dies and the contents of their Will are revealed, friends and relatives may be surprised, or even distressed by its contents. The laws of Queensland are quite liberal. We are given a great deal of choice about who we leave our property to, even if our choices seem unfair or unwise to others. Wills can only be challenged if the Will is invalid or, in limited circumstances, when certain people have not been provided for in the Will.
We all hope that we can settle our affairs in such a manner to avoid conflict between our beneficiaries after our death, but unfortunately, disputes do arise. We can help with all manner of estate-related litigation including probate applications, assisting executors and trustees, administration of trusts and variation of wills. John Harris Solicitors has over 40 years of experience in handling everything from the simplest of wills up to multi-million dollar estate administrations with multiple beneficiaries and assets. Whether you are an executor, trustee or beneficiary of an estate, or even a child or spouse of the deceased who feels you have been wrongly excluded from the estate, we, at John Harris Solicitors can help you find a solution that works.
John Harris Solicitors can help you if:
- A will is unfair;
- A will is suspect;
- Your inheritance needs to be defended;
- You did not receive sufficient monies from the estate;
- You are an Executor
Are you adequately provided for in the Will?
Pursuant to Queensland succession laws, the list of people who are commonly recognised as potential claimants include:
- the children of the deceased;
- the husband or wife of the deceased;
- sometimes the ex-husband or ex-wife of the deceased;
- children of the deceased’s husband or wife;
- people who have been wholly or partly dependent on the deceased; and
- grandchildren of the deceased if they were part of the deceased person’s household.
The above is not a complete list of people. The list of claimants are lengthy so it is best to call us on +61 7 3839 1500 to discuss your personal circumstances.
The law recognises that when people make Wills they should leave a part of their estate to certain defined classes of people in order that those people have a fair go at getting on in life. It is recognised as a moral obligation of the deceased estate.
To determine whether the estate has made proper provision for the claimant the court will consider:-
- Your relationship with the deceased;
- The quantum (i.e. value) of the estate;
- Your state of health and any special needs you might have;
- Your financial circumstances;
- Whether there are people dependent on you and their level of “need”; and
- The other beneficiaries named in the Will.
The Court will also consider whether you made any special contribution towards the deceased person's assets or their wellbeing, and whether you conducted your affairs with the deceased person properly during their life. The Court will consider anything else that it considers important.
If you think that the terms of a Will are wrong or unfair to you, then you should not delay in calling us because strict time limits apply. Furthermore, if you delay your claim then you may find that the estate assets have already been distributed. Whilst this will not make your claim impossible, it will certainly make it more difficult. All such challenges are legally complex and specialist advice should be sought.
Is the Will invalid because the proper procedure has not been observed?
If a Will does not comply to strict rules, it may be invalid. A valid Will can only be made by someone of at least 18 years of age. Wills have to be in writing and signed by the person making the Will in the presence of two witnesses who are not going to inherit anything from the Will. The witnesses should also not be married to anyone who will inherit anything from the Will.
A properly drafted Will makes it clear that the two witnesses actually saw the person making the will sign the Will. This clause is called an attestation clause. A Will may still be valid without such a clause. If you want to challenge a Will without such a clause, you would need to seek specialist advice from a solicitor.
Is the Will invalid due to the personal circumstances of the person making the Will?
The person making the Will should not be under pressure or duress from any other person to write their Will in a particular way. They should also be of sound mind at the time of making the Will. They should understand what they are doing at the consequences. Disinheriting your family is not evidence of mental heath problems. The law allows us to be eccentric. Each case depends on it’s facts and individual advice must always be sought.
People who have an interest in property owned by the person who died
If you owned a property jointly with the person who died or if you have made a substantial contribution to the cost of any property that was in the sole name of the deceased at the time of their death, you should seek legal advice from a solicitor. It may be that you have a claim which is independent of anything in the Will.
Where to now?The best way to get the answers you need is to speak to a solicitor, so call us on +61 7 3839 1500.
Organise an initial consultation
A face-to-face consultation gives you the opportunity to discuss your family law issue with professionals who deal with and resolve these issues on a daily basis. We provide a free half an hour initial consultation. It gives you a chance to ask any questions you may have and for a member of our team to gain background and provide an insight into the options available to you.
For more information please call us on +61 7 3839 1500 or send us an e-mail at info@jhsolicitors.com.au. We are here to help.