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Commence a contested will claim: Extended family claim from grandfather’s estate

A woman married and her father-in- law was always very supportive, and when her husband

died, he took her in, plus the children. This meant that three generation of family were living


He was a widow, and a relative turned up from overseas before he died, who said that as he

was single everything should go to the relative. He changed his Will to make that relative the

sole beneficiary. And as a result the daughter-in- law and the two children who were still

living in his house, have found themselves getting nothing under the estate. They need to

know whether or not they could claim as dependents.

Comments by Terry Johansson, Specialist Lawyer

It depends on which State the deceased lived, as that determines whether or not the daughter-

in-law can claim. However, the daughter-in- law may be able to claim as a dependent who

has lived with the deceased, or someone who was dependent upon the deceased at the date of

death. The strength in this is that she has been dependent upon the deceased for a long time.

The grandchildren may claim under two heads: as grandchildren who were dependent upon

the deceased that is specifically permitted in the state, or as people who had lived with the

deceased and were dependent on the deceased at the date of death.


Application of the Intestacy Rules: Can a wish list override the Intestacy Rules?

Three children in the family have discovered that when the mother died there was no Will.

She had written out a wish list leaving the bulk of her assets to relatives in the UK, and it

appears that this was signed by her, but there was no witness, and it was not drawn up as a

formal Will. It made no mention of anything passing under the document, just being a list of

things, and some names beside it. Under the Intestacy Rules they will share the assets in

Australia equally, and they want to know whether the wish list will stand.

Comments by Wills & Estate Specialist – Terry Johansson

The solicitor will need to determine whether or not the wish list may constitute an informal

Will, and if it is, lodge it for Probate. Based on the above this does not appear to be the case,

and so the document should not be binding and the Intestacy Rules would apply.


Commence a Will Contest Claim: Husband cut out of Will: Problems in getting house

A husband lost his wife and then found out that the house that he had been living in was 40%

owned by her previous partner as tenant in common, and his wife only had a 60% share.

Under the Will the wife left all of her 60% share and all other assets to her children and

nothing to the husband. He now realises that he has no right to live in the house if things

cannot be resolved.

Comments by Wills & Estate Specialist – Terry Johansson

As the spouse of the deceased wife, he is in the strongest position to challenge the Will, even

though the estate is only worth 60% of what he thought it was. His claim will normally take

precedence over any entitlement of the children, within reason. He can strengthen his claim

by claiming an equity in the property arising out of his contribution to the maintenance,

repairs, etc to the house over the years. He should be able to get a no win/no fee lawyer to

fund the litigation.


Commence an Inheritance Act claim: Can undue influence lead to an effective marriage?

Three children expected to inherit their father’s assets when he died, he having been ill with a

fatal illness for some time. A few days before he died they found that he had married his

carer in a civil ceremony. He was supposed to have been so unwell that he could not stand

up. He got his new “wife” confused with his sister, leading to comments that “he did not

know what he was doing”.

What was worse was that he then made a Will leaving everything to his new “wife”. The

children want to challenge the Will and know about their rights.

Comment by Specialist Wills & Estate Lawyer Terry Johansson:

The first issue is whether or not she is a wife: If not, she would simply be someone who has

lived with him for three or four days, and although this may give her some right to challenge

the Will, her rights will not be strong. A family lawyer should be consulted to see whether or

not they can contest the validity of the marriage. If the marriage is invalid, the wife may still

claim to be entitled under the Will, but because the Will described the person to benefit as his

“wife” she may not be entitled if she is not legally married to him. There is also the question

as to whether the Will is valid anyway. The children would be best advised to get advice as

to whether they can challenge the Will as a backup claim and pursue the other avenues.


Application of the Intestacy Rules: Rights of “Wife” if marriage is invalid

When their father died, his children were shocked to find that he had secretly remarried a

woman from a foreign country. He did not leave a Will and the wife claims that under the

Intestacy Rules she is entitled to the whole of the house. There has been a whisper that she

was already married to another man and has not been divorced.

Comment by Specialist Wills & Estate Lawyer Terry Johansson:

Legal advice should be obtained as to whether the “marriage” to the father was valid or if any

previous marriage had not been properly terminated, then this marriage would be invalid and

she would not take everything under the Intestacy Rules as a “wife”. But she may be able to

make a claim instead as a partner so long as she has lived with him for more than two years.

If she has not done that, then she may have a right to challenge the Intestacy Rules claiming it

as unfair that she receives nothing.


Commence a Will Contest Claim: Ex Partner Claims Old Family Home

A woman who had lived with a man for many years separated years ago then she remarried.

When they separated she promised to leave the man half of the house when she died. She did

not do that and he now finds that the house goes to her children, with nothing to him or to the

new husband.

Comment by Specialist Wills & Estate Lawyer Terry Johansson:

In this case the man will need to fit within a category of claimant in the State in which the

claim is to be brought. Some States will permit an ex-partner to bring a claim and other

States won’t. If he does qualify, then he should be in a good position to claim that she should

have provided for him in line with the agreement. However if he is already wealthy he will

have no financial need, and it still may be difficult for him to prove the obligation. He has an

added problem in so far as the new husband who has also been left nothing has a much

stronger claim to a share of the property, because he was in a relationship with his wife, when

she died, and has received nothing. His claim is stronger than that of any of her children.

The ex-partner would be wise to obtain legal advice as to whether he has any equity in the

property, by virtue of the arrangement, especially if he helped buy it, and if so, this will be

probably a stronger claim than a claim brought for further provision by contesting the Will.


Commence a contested will claim: Brother evicted from family home: Rights over the house

There are three children in the family and when both parents died, everything was to be split

between them and no special provision was made for the brother who had lived in the house

and looked after the parents all his life. He cannot work, and has no assets of his own, and

was financially dependent upon the parents. The house has been sold, and he is now on the

street. He would like to contest the Will.

Comment by Specialist Wills & Estate Lawyer Terry Johansson:

So long as he brings his claim within the limitations period he should have no concern, and

his case is stronger because the other children have their own homes already and he has

nothing. He has been totally dependent upon the parents all their lives.


Commence a Will Contest Claim: Nieces molested by uncle: challenging the Will and suing the estate

When their uncle died, three nieces discovered that he had left everything to the Dog’s Home,

even though he had bought them up as if they were his daughters. Because they have been

dependent upon their uncle for so long, and lived in the same house, they would be able to

make a claim that would be similar to a child making a claim, so as long as they have

financial need. The fact that all of the sisters were molested by the uncle while he was in

charge of them will strengthen the claim, and may lead to a more favourable outcome.


Any charges such as molestation can only be dealt with if a person is contesting a Will, if

they are qualified, if they cannot contest the Will they will need to consider alternative legal



A late application problem: out of time: Executor induces beneficiaries not to contest Will

A father had a great deal of confidence in his eldest daughter, who he appointed executor of

the Will and left everything. There was nothing in the Will, but he made it clear to his

lawyers, and to the family and family friends that the daughter was to share the assets equally

with her younger brother. After she obtained Probate, she kept promising to give the brother

half, but never did, and after the six months had expired from the date of Probate, she then

told her brothers that she was not going to give him anything as there was no provision in the

Will requiring her to do so. In the State concerned the limitations period has expired and the

brother now would like to bring an action to contest the Will, saying it was unfair to give

everything to the sister.


Provided the brother acts quickly, before the assets are distributed, or otherwise as soon as

possible, and is able to prove the promises made by the daughter, the Court should be

persuaded to allow the brother to bring an application late. A legal opinion should be

obtained from a barrister before commencing the action.


An estate administration issue: Rights of beneficiaries when trustee makes error

It is not uncommon for beneficiaries taking under a Will, or for people who take under the

intestacy rules, to be unhappy with the progress of the finalisation of the estate, and the way

things are handled. All beneficiaries have a right to request information from the executors

as to how the estate is being administered, and to insist upon it being done within a

reasonable time. An application can be made to the Court in the event that the executor is not

handing it properly, and orders made by the Court for the executor to comply with. The

orders may be to finalise the administration, produce accounts, sell property, or it may be

possible to have the executor removed in some cases.

If the executors make a mistake, then an action may be commenced, claiming negligence, and

damages from the executors.


The Courts are most reluctant to replace executors, unless there has been wrongdoing, or it is

almost certain to occur. Beneficiaries should avoid making applications to the Court unless

the executor has clearly delayed or done the wrong thing, as otherwise the beneficiaries may

end up with a cost order against them for the costs of the hearing.