Disputed, Contested Wills & Testator Family Maintenance Claims
At Cyngler Kaye Levy Lawyers we have experienced Probate & Litigation lawyers who can assist and advise you if you are involved in a Will dispute or Testator Family Maintenance Claim.
What is a contested Will?
Contested estate claims and other estate disputes or challenges may arise between family members and other potential beneficiaries after a person dies.
You need to be aware of the following:-
- LEAVING YOUR ASSETS – A person can make a Will leaving his or her assets to whomsoever the Will-maker pleases.
- OMITTING A PERSON – The principles of testamentary freedom dictate that a person may legitimately chose to leave a spouse or children out of a Will.
However, there are provisions which limit these freedoms:-
- ADEQUATE PROVISION – The legislature, as a matter of social policy, regards it as right and proper that a person, in making a Will, should make adequate provision for the maintenance and support of those persons closest to or dependant on him or her.
- MORAL OBILIGATION reflects a duty resting on a Will-maker to make not merely adequate or sufficient financial provision for members of his or her family, but also the obligation to measure the adequacy or sufficiency by reference to what is right and proper according to accepted community standards (economic needs – s91 of the Administration and Probate Act 1958 (Vic)).
There may be relatives, de facto spouses and their children who are left without adequate financial provision and who can make a claim against the estate.
We have experienced probate litigators who can guide you through the complex process of fighting or defending a Will.
We act for Executors defending a contested Will and we act for potential Beneficiaries who wish to challenge a Will.
Q. How can I fight a Will?
There are two ways to challenge a Will:
(a). You can challenge the Validity of the Will;
The validity of a will can be challenged on a number of grounds including if you believe that one of the following applies:
- The deceased did not have the capacity necessary to make a valid Will, for example if they were suffering from dementia, or other mental illness, when they signed the Will;
- The deceased was under undue pressure and/or influence when the signed the Will;
- The Will was not properly executed by the Deceased
- The Will has been revoked, or superseded by a later Will
(b) Or, if eligible, you can make a Testator Family Maintenance Claim (“TFM Claim”) under the Administration and Probate Act 1958 (Vic).
Testator Family Maintenance Claims are the most commonly used way to challenge a Will, and may be where someone believes they have not been adequately provided for under the Deceased’s Will. We can assist you to make this claim.
Q: Who can make a Testator Family Maintenance Claim against a Will?
Any person the deceased had a moral responsibility to provide for may make an application in Victoria to challenge the Will.
‘Responsibility’ has a broad meaning, and can include many family relationships, as well as friends and carers. We can advise you if you fall under this category.
Q. Are there any time limits on disputing a Will?
As a general rule a person wishing to challenge their entitlement under a Will must bring a claim within 6 months of the grant of Probate or Administration. We can assist you in making a claim.
In certain circumstances, the Court may grant permission for an Application to be made outside of this time. If you are out of time, we can assist you with this type of claim.
Q. What are the grounds to make a TFM Claim?
The key issue is whether there has been ‘inadequate provision’ made for a person’s proper maintenance and support by the testator in circumstances where the testator had a responsibility to provide for that person.
As a general rule people are entitled to leave property to whomever they choose under their Will. However, the law also recognised that in some cases a moral duty exists to provide to people who are closest to us. In exercising its discretion the Court will consider a range of factors.
Top factors courts take into account when considering adequate provision under a Will.
- The nature and duration of the applicant’s relationship with the deceased
- The applicant’s financial resources and needs
- The size of the estate
- The financial needs of any other competing claimants
- Any contributions made by the Applicant to the Deceased’s estate
- Any representations about entitlement made by the Deceased to the Applicant.
We can discuss with you whether you have grounds to make a claim.
We have successfully litigated and/or defended estate dispute claims for more than 25 years.
Please do not hesitate to speak with one of our experienced Probate lawyers on +61 3 9500 1722 or email an enquiry.