Estate Litigation 2017-11-09T23:15:05+00:00

Estate Litigation Services

At Liberty Law, we think every individual should have the freedom to decide how their personal assets are distributed after they’re gone. We focus on safeguarding a will-maker’s interests and respecting their wishes. Our commitment to Australian will-makers extends beyond the grave, with our estate litigation services.

We act for executors in estate litigation matters, to defend the wishes made by a will maker. We do not act for people on the other side trying to challenge a will-maker’s estate.

Naturally, we’d prefer to be consulted during a person’s life but we understand that people sometimes fail to plan for uncomfortable events. In that case, we are here to ensure a will-maker’s wishes are respected to the fullest extent permitted by law.

We offer strategies to lessen the impact of a claim, reduce a claimant’s chances of success, or even make their claim futile.

It is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit.

The Hon Justice Michael Andrew Pembroke, NSW Supreme Court

Estate Litigation FAQ

In what circumstances does a court override or rewrite a will? 2017-09-05T21:03:26+00:00

If it suits a disgruntled person to make the argument, they often start by alleging the will is invalid for some reason, such as a lack of capacity of the will-maker, when the document was signed, or some technical flaw exists in how the will was prepared or signed.

Assuming there is a valid will, each challenge is different and the outcome depends on the unique circumstances of the case, however, as a guide, a person making a claim needs to show inadequate provision has been made from the will-maker’s deceased estate.

Factors a court may consider, in considering the claim include:-

  1. The size of the estate (with a larger estate being more up for grabs than a smaller estate);
  2. The financial circumstances of the claimant (with a person of modest means more likely to succeed with their claim);
  3. The financial circumstances of the beneficiaries named in the will;
  4. The claimant’s general non-financial circumstances, such as their age, health, and needs;
  5. The nature of the relationship that existed between the deceased and the claimant and the relationship that existed between the deceased of the beneficiaries named in the will.
Are there ways to avoid a challenge against your will? 2017-09-05T21:00:06+00:00

There is no clause you can insert in a will, which prevents an eligible person from making a claim.

You can, however, take measures to lessen the impact of a claim, reduce a claimant’s chances of success, or even make their claim futile.

Examples of strategies that may be implemented, as part of an estate plan include:-

  1. Transferring an asset to a preferred person, during your life.
  2. Transferring a property from your sole name, into joint names with your preferred recipient means the property does not form part of the deceased estate and is not included in the pool of assets subject to a claim.
  3. Assets held in a discretionary trust do not form part of your deceased estate and are not included in the pool of assets subject to any claim. Accordingly a strategy may involve transferring assets into a trust during your life and ensuring your preferred person takes control of that trust upon your death.
  4. Preparing a Binding Death Benefit Nomination in relation to superannuation death benefits enables payment directly to a dependent and accordingly the benefit does not form part of your deceased estate and is not included in the pool of assets subject to any claim;
  5. If a Binding Financial Agreement is made with a spouse (including a de facto) during your life, the content of that document is taken into account by a court if the surviving party to the agreement makes a claim. This may be particularly relevant to people in blended families that seek to protect the interests of children of a first marriage.

Note, things get a little more complex in NSW, as that State’s Succession Act enables a court to treat certain property transferred within 3 years prior to a person’s death (not forming part of their actual deceased estate) as forming part of a deceased person’s “notional” estate. When a claim is made, the court looks at both the actual deceased estate and the notional estate, when assessing the pool of assets potentially available to a claimant.

In what circumstances does a court override or re-write a will? 2017-09-20T13:29:06+00:00

If it suits a disgruntled person to make the argument, they often start by alleging the will is invalid for some reason, such as a lack of capacity of the will-maker, when the document was signed, or some technical flaw exists in how the will was prepared or signed.

Assuming there is a valid will, each challenge is different and the outcome depends on the unique circumstances of the case, however as a guide, a person making a claim needs to show inadequate provision has been made from the will-maker’s deceased estate.

Factors a court may consider, in considering the claim include:-

  1. The size of the estate (with a larger estate being more up for grabs than a smaller estate);
  2. The financial circumstances of the claimant (with a person of modest means more likely to succeed with their claim);
  3. The financial circumstances of the beneficiaries named in the will;
  4. The claimant’s general non-financial circumstances, such as their age, health and needs;
  5. The nature of the relationship that existed between the deceased and the claimant and the relationship that existed between the deceased of the beneficiaries named in the will.
Who is eligible to make a claim against an estate? 2017-09-20T13:29:29+00:00

A claim (known as a family provision claim) may be made to court against a deceased person’s estate by an eligible person, such as a spouse or child of a deceased person or another eligible person as determined by law.

Where a claim is successful, a will-maker’s wishes are essentially overruled by the court and the claimant is awarded provision, or extra provision, from the deceased person’s estate (in NSW, including their notional estate). To receive provision, or extra provision, from an estate, the claimant generally needs to show the court that funds from the estate are necessary for their ongoing maintenance or support.

Eligibility to claim differs slightly from State to State, however below is a guide to eligibility requirements in Queensland, Victoria, and New South Wales:

In Queensland

The following persons are eligible to make a family provision claim in accordance with the Succession Act (Qld):

  1. The deceased’s spouse (including a de facto).
  2. The deceased’s child (including biological, adopted and stepchildren); and/or
  3. A dependant who has been wholly or substantially maintained by the deceased at the time he/she died (such as a parent or any person under the age of 18 who was being maintained by the deceased, regardless of their relationship with the deceased).

In Victoria

The following persons are eligible to make a family provision claim in accordance with the Administration and Probate Act (VIC):

  1. A person who was the spouse or domestic partner of the deceased person at the time of the deceased’s death.
  2. A person who was a former spouse or domestic partner of the deceased person as at the date of death, who was able to take proceedings against the deceased under the Family Law Act and who did not take such proceedings and was prevented by the death from taking the proceedings, or, who did take proceedings and could not finalise them because of the death of the deceased.
  3. A carer, if they were in a “registered caring relationship” as defined under the Family Law Act 1975 with the deceased.
  4. Grandchildren (including step grandchildren or adopted grandchildren) of the deceased, provided the grandchild was dependent on the deceased in the same way that a child is dependent on a parent.
  5. A member of the household of the deceased person, provided they have been wholly, or partly, dependent on the deceased for their proper maintenance and support.
  6. A child of the deceased being:
    –  Under 18 years of age
    –  A full-time student aged between 18 and 25
    –  With a disability (as defined in Section 90 of the Administration and Probate Act)
    –  A step-child, or adopted child of the deceased, subject to the categories listed above
    –  An adult child who can demonstrate he or she is not capable by reasonable means of adequately providing for their own proper maintenance and support
    –  An “assumed child”, meaning the child was treated by the deceased as a natural child.

In New South Wales

The following persons are eligible to make a family provision claim in accordance with Section 57 of the Succession Act 2006 (NSW):

  1. The deceased’s spouse at the time of death (including a de facto spouse).
  2. The deceased’s former spouse.
  3. The deceased’s child.
  4. A person who was wholly or partly dependent on the deceased.
  5. A person who was a grandchild of the deceased, or a member of the household of the deceased.
  6. A person who lived in a close personal relationship with the deceased at the time of death.