What are the biggest problems facing people who want to contest a Will?

As the principal of CWPL, I deal with many hundreds of people every year, on a daily basis,

who ring up to find out whether they are entitled to make a claim.

Unfortunately a significant proportion, may be a third to a half, call us too late.

There are strict time limits within which one can make a claim to contest a Will, claiming that

the deceased did not properly provide for another family member.

There are shorter time frames within which it is practical to claim that a Will is invalid: this is

important if there is anything suspicious about the Will. If Probate has been granted, it is

much more complex for a family member to get the Probate reversed, and in many cases it

means that the family member cannot do anything about it.

This is important because usually people will get more by having the Will stopped and not

accepted for Probate than they will by trying to contest the Will which is a much more

complex affair.

So, if there is anything suspicious, call a lawyer as soon as your suspicions are raised.

Many people wait until they can see the Will, because they do not want to create a fuss, but

by then usually the Probate has been granted and they have lost the right to stop the Will

being approved for Probate.

If you are suspicious, contact a lawyer, and they will be able to stop the Will going any

further, can get a copy of the Will before it is lodged for Probate, so that you can make your

own assessment as to whether there is anything suspicious and you can get legal advice on

what to do.

Waiting until the Will is registered for Probate means it is usually too late for people to take

practical steps to stop the Will being registered for Probate, without huge financial risks.

Contested Wills and Probate Lawyers will offer an obligation free telephone interview for

you, so please do not hesitate to contact us: numbers are shown below.

00683.6/QA/TJ/201-/AU/C/XXX/- /FAC/EA/?

Elder Abuse: Increasing numbers of people lose control of their aged relatives, and find

carers and other people have moved in

We commonly find that as people age, particularly as they can become more eccentric, this

provides opportunities for other people to move in and take control of the elderly loved one.

One particular group of people who are accused of doing this are carers, and another one is

neighbours and distant relatives.

There are also people who are known to actually prey on the aged relative. In each case the

situation is similar: they start working with the aged relative in a caring role, and the family

are generally very happy to have that done, and to be relieved of some of the work. Over

time, the elderly relative’s mind can be poisoned, or at least turned, against the family and

very often towards the end of the person’s life, the carer/neighbour has taken control of the

person’s life, is present when any family member visits, screens all telephone calls, and very

often prevents the family from making any contact with the aged relative at all. It is not

uncommon for the family to be faced with Court or Police orders preventing them from

making contact with the aged relative whatsoever. It is only a matter of time then that many

usually discover that after the relative has gone, that the Will leaves a substantial benefit to

the carer/neighbour, if not everything.

If this occurs: what should you do?

The best thing to do is immediately contact a lawyer, and see whether you can take action to

stop the Will being registered for Probate, as this will put the carer/neighbour on notice that

they will need to prove the validity of the Will. Very often the Will is made in strange

circumstances, and if the deceased did not have capacity to make the Will or was subject to

undue influence, the family may be able to stop the Will from being registered for Probate.

Otherwise, if the Will has been accepted for Probate, then the family member should obtain

legal advice immediately to see whether they can contest the Will and say it is unfair if they

have been cut out and not provided with sufficient provision.

The limitation dates for doing that vary, but in New South Wales it is 12 months from the

date of death, but six months in all other States from the date of Probate, not the date of

death.

00683.6/QA/TJ/201-/AU/C/XXX/- /FAC/EA/?

Name of case:

Taylor v. Taylor & ORS [2016] WASC 71

In this application to the Court, a son made an application for further provision from the

estate on the basis he had been cut out of the Will by his father.

The main beneficiary of the estate was one of the father’s other sons, who had cared for the

father for some time.

The estate was of modest value, being approximately $560,000.

The Plaintiff son and his wife had joint assets of about $400,000, and a pre-tax income of

$118,000 a year.

There was some illness, but the Judge considered that “really what the Plaintiff is claiming is

a top-up from the deceased’s estate which will allow him and his wife to live with a degree of

comfort and certainty into the future”.

After considering all of the issues, and principles laid down by the law, the Judge held that

the “Plaintiff has an adult son, has sufficient, both by way of assets and income, not to

warrant further distribution from the estate”.

The Judge listed a summary of the principles applicable to claims by adult children, which

are set out below.

For a convenient summary of the principles applicable to claims by adult children, see Braun

v Australian Executor Trustees Ltd [2014] WASC 210 at [11], which the judge referred to.

In short:

(a) The relationship between parent and child changes when the child leaves home; the

child does not cease, however, to be natural recipient of affection or support;

(b) The community expects parents to raise and educate their children to the very best of

their ability while they remain children; probably to assist them with a tertiary

education where that is feasible; where funds allow, to provide them with a start in

life such as a deposit on a home or assistance in some other form;

(c) Generally the community expects a parent where a child falls on hard times, and there

are assets available, to provide a buffer against contingencies or to assist with

retirement;

(d) If the applicant has an obligation to support others, that will be a relevant factor in

determining appropriate provision;

(e) There is no need for an applicant child to show special need or some special claim;

(f) An adult child’s lack of reserves to meet demands, particularly of ill health, is a

relevant consideration as is the applicants inability to earn a living or to earn anything

more than a limited living;

(g) The applicant has the onus of satisfying the Court of the justification of the claim;

(h) Equality between children does not necessarily provide an appropriate guide as to

appropriate provision in respect to a particular claim;

(i) There is no obligation on a parent to equalise distributions made to his or her children.

00683.6/CR/TAY/643968/C/XXX/1/3/2016/MAC/FN/3/16

A daughter claims that she has not been properly provided for in her father’s Will.

Her father was wealthy and there is a substantial estate.

She has threatened to contest the Will, and the deceased’s female friend has now stated that

she intends to contest as well.

The daughter has been advised that as the friend was never dependent upon the deceased, had

never lived with the deceased, and was independently wealthy, the friend is unlikely to

succeed, and is probably unlikely to bring an application in any event.

The friend has claimed that she was living with the deceased. They did stay over at each

other’s houses on more than one night a week and this was motivated by convenience. This

would not seem to amount to cohabitation in any real sense.

On that basis the daughter feels confident that her claim will be successful, and the girlfriend

will not be able to claim as being in a domestic relationship with the deceased.

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

In order to contest the Will the girlfriend would need to show that she lived in the same

household as the man as his wife for a period of two years immediately preceding the date upon

which he died.

It may be possible for her to show this if they in fact lived together and shared both houses, but

this does not seem to be the case.

00683.6/CQ/DEW/20165335/C/XXX/7/3/2016/FAC/CR/?

Harry is in hospital, and unable to make a Will.

He had four children, two of whom have died, and those two children each left two of their

own children; four grandchildren in all. He has two children who are alive.

He has never got on well with the four grandchildren of the deceased children and favours his

two children who are still alive, and their families.

When he dies his property will pass under the intestacy rules which will mean that it will be

divided into four equal shares, with the two living children taking a quarter each, and the

other four grandchildren taking between them, the share that their parents would have had.

The two surviving children would like to apply to the Court to make a statutory Will on the

basis that he would not want to benefit those four grandchildren at all, and would prefer

everything to go to them solely.

If they were successful the statutory Will would be made while the father is alive.

They are aware of the fact that they will need strong evidence of what their father wants, as

the Court will be mindful of the fact that any statutory Will will deprive the four

grandchildren of any right to participate in the estate.

00683.6/CQ/SAU/20121526/C/XXX/-/NON/SW/3/16

Mary’s father recently died. She is middle aged.

Mary has one sister who is alive, but her brother Harold, died many years ago.

Harold had three children, who are aged 10, 11 and 12.

During the life of Mary’s father, he supported Harold’s three infant children, who were taken

in by another relative. The grandfather paid their school fees, living expenses and the like.

As they were dependent upon their grandfather at the date of death, it would seem that they

have a strong claim against their grandfather’s estate but they will need to get a relative to

stand in and claim for them.

The amount that they get bears no relation to their deceased father’s position in the family.

There is no automatic rule that they should get 1/3 of the estate, by claiming what their father

would have received it he was alive, and in fact they could get more or they could get less

than 1/3.

—

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

The primary issue here is that the grandchildren were dependent upon their grandfather at the

date of death, and it is only then necessary to see whether they can fit into a class of applicants in

the State in which they live. In some States grandchildren are specifically able to bring a claim,

and in other States they may be successful in bringing a claim by virtue of being a dependent at

the date of death.

00683.6/CQ/CHA/20165333/C/XXX/CGH/CF/?

A son finds that many years ago his widowed mother transferred her property to her daughter,

his sister. Now, the mother has passed away, the son finds that there is nothing to pass under

the Will, and everything is effectively already in the name of the daughter.

He said that the Will may be invalid but this does not change the position for him. There is

nothing in the estate to pass to him so there is no point in arguing as to whether the Will is

valid or not valid.

He does not believe that there is anything technically wrong with the transfer and he believes

that his mother did the transfer of the property to her daughter through her solicitor with full

knowledge of what she was doing.

He will try and see whether there are any other assets against which he can claim but

otherwise, commencing a challenge to the Will will probably fail.

—

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

Even if a person is successful in contesting a Will, if there are no assets in the estate, any Court

Order in their favour will be ineffective. As the house was transferred some time ago, it seems

that his application cannot help him to retrieve that property. Careful legal analysis needs to

focus on whether the mother had legal capacity to transfer the property to the daughter, but

based upon the facts, it would seem that she did.

00683.6/CQ/SMI/20165318/C/XXX/3/6/2016/FAC/SZ/?

A son found that under his father’s Will he was left one house, another house was left to his

brother, and a small amount of cash remained to be divided between them.

Before the father died the house that was said to be going to this son in the Will, was sold and

he was told that apart from half of the cash, he would get nothing.

As a child he is able to contest the Will. A factor in his favour would be that it was intended

that his father was to leave him this house, and the will was not rewritten after it was sold.

However he will not be able to claim the full value of the house.

It is also quite possible that the proceeds of the sale can be traced and if they are held in a

bank account and/or were disposed of by an attorney during the life of the deceased, it might

be possible to have it pass under the Will.

It may also be necessary to apply to the Court to interpret the Will in a favourable manner or

to rectify it.

—

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

The effect of selling the property is that the house that was to go to the son no longer is owned

by the estate and he cannot benefit from that. If the property was sold by an attorney, and/or if

the assets are clearly traceable to particular account or other form, the operation of the law and

the Will may mean that these assets can pass to the son who was intended to benefit, rather than

going as “cash” between him and his brother. An application to the court may be warranted.

00683.6/CQ/BAR/20165334/C/XXX/4/3/2016/MAC/PD/?

A mother died leaving her house to her four children, and appointed one of her children as

executor.

The executor promptly moved into the house and has lived there for 3 years and refuses to

sell the property.

The other children are now fed up and have decided to exercise their rights.

In any adjustment of the estate they will be claiming rent, and interest on that rent from the

brother who is living in the house.

As the exemption period from capital gains tax has expired, if the Commissioner of Taxation

will not extend the period within which they may sell the house free of capital gains tax, they

will sue their brother for any extra capital gains tax due to the late sale of the property.

They will need to make an application to the Court to seek orders that the brother vacate the

property and sell the property, and/or make application to remove him as executor.

00683.6/CQ/VOG/201530/C/XXX/-/NON/AP/?

After the death of her husband, a widow transferred her family home to one of her daughter’s

children, and lived in it for a number of years until she died.

The wife of a deceased son now finds that there is nothing in the estate and has been told that

her mother-in- law had no obligation to provide for her, just because she was married to the

deceased’s son.

In any event there is nothing in the estate.

00683.6/CQ/ANT/20121536/C/XXX/-/OTH/GI/3/16