Commence a contested will claim: Claim by daughter competes with a girlfriend

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

The 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 anyway.

The friend has claimed that she was living with the deceased, but in fact they did stay over at

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

This would seem not 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 in England the girlfriend needs 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 him to show this if they in fact lived together and shared both houses, but

this does not seem to be the case.


Commence a Will Contest Claim: Jurisdiction of overseas property

A son who lives in Australia is enquiring about his father’s estate, who died several months

ago in France without a Will.

The father had moved to France some years ago, and was single when he died, but left a

couple of flats.

He wanted to know what his inheritance rights may be, assuming that there was no Will.

As the father was domiciled in France, meaning that this was his long-term home where he

lived with no intention of resuming living in Australia, it is clear that the assets will pass

under French law.

If the father did in fact have a partner, the partner will probably have an option of taking full

ownership in a share of part of the assets, and the balance will be held on behalf of the

children in Australia.

If there was no partner, then all of it will be held on behalf of the children in Australia.

He will need to obtain a lawyer, and as he has no money, he will need a no win/no fee lawyer

or other lawyer who can structure a financial arrangement for the fees to enable him to collect

his inheritance.

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

In all applications to contest a Will it is important to know which jurisdiction (place to sue)

apply. The laws of a person’s domicile, which is the place of their habitual residence, normally

deals with most claims, as that is the place where these claims can be brought.

However if someone owns real estate in another jurisdiction, the laws of that country will

usually determine whether or not a person can bring an application to contest a Will: if the

deceased was not domiciled in that foreign county, it is unlikely that anyone can contest a will or

contest any Intestacy Rules that may apply.


A late application problem: out of time: Daughter: Late claim destroyed by her actions

A woman has recently decided to contest the Will, even though it is a number of years since

her father died. She had left everything up to her brother to sort out her father’s estate, and

then found that her father had left everything to the brother, and nothing to her.

The property involved is a farm and the brother has done nothing with it, and has not paid the

rates since the father died.

She was told by her advisors that she may be able to file her application to contest the Will,

and claim a share, even though it is late, because there has been no distribution of assets, the

executor has done nothing, and it would not be unfair on the brother to do so.

After receiving legal advice she called her brother and told him that she was going to make a

claim for something from the Will.

A couple of months later when she decided to make the claim she was then advised that the

brother had recently transferred the property into his name pursuant to the terms of the Will

and that her application to make a late claim has probably failed due to her telling him and

failing to act promptly. Once the estate had been wound up the court is unlikely to give her

permission to claim late.

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

If the woman had not called her brother and she made her application before he transferred

the property, the Court may have given its consent to her bringing her application late,

because the estate had not been administered. However once the estate has been

administered, the Court will be reluctant to give her consent to bring the claim late. It would

have been different if the brother had actively misled her in some way and put her off

commencing a claim.


Commence a contested will claim: Sister breaks promise to leave assets to brother

Harry and his sister had always got on well, and when Harry’s mother died he was

disappointed to see that his mother left everything to his sister, Mary. He wanted to contest

the Will but Mary said that she would compensate him in her Will, if she was to die first.

Mary died after some years and he found that she left him nothing.

He realises that without a Contract he has nothing enforceable against Mary’s estate. He

could not prove that he had given up his rights to claim against his mother’s estate because of

Mary’s promise, and he had not changed his position in the expectation that Mary was to

leave anything to him.

In the State in which he lives a brother cannot make a claim against a sister’s estate by

contesting the Will and he cannot challenge her Will.

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

This problem illustrates that in order to contest a Will a person needs to be qualified to bring the

claim: in all States of Australia in order to contest a Will you need to fit into a category of

claimants. Brothers and sisters usually cannot claim unless they were dependent upon the



Defend a Will Challenge: Administrator faces multiple claims

Harry’s father died two years ago intestate, leaving a very valuable house in one of the major


Harry applied for letters of Administration.

The father had lived with his girlfriend in that house for many, many years. She is

independently wealthy.

There is a huge mortgage on the property and the bank have told Harry that as administrator,

he is responsible for selling the property and paying out the bank.

He would like to do that, but the girlfriend is now claiming part ownership of the house, and

also considering challenging the intestacy saying it is unfair that she has not received


Because of the competing claims Harry does not know what to do. His brother and sister

want their inheritance quickly.

Harry has decided that the best thing to do is to try to settle the girlfriend’s claim against the

house, and to arrange for the bank to wait until this has been dealt with. The bank can then

wait for him to sell the property and then pay them out.

It is better for him to try and manage this process rather than leave it for the bank to appoint

its own lawyers to sell up the property, and then fight things with the girlfriend, which would

considerably add to cost.

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

Harry needs advice on how best to juggle things, and how to properly administer the estate.

Whether the girlfriend will succeed in contesting the intestacy, depends upon whether she can

establish that they had lived together. The process is similar to contesting a Will


Commence a contested will claim: Importance of financial need: It’s the law

Two brothers expected to inherit when their father died, and the Will provided for a 50/50

split of all estate assets. However the eldest brother claims that he has spent many years

looking after the parents, has lost superannuation, lost promotion and lost 15 years of

opportunities living with the parents, looking after both of them until they died. The eldest

brother feels that he should be getting more than 50%. The value of the property that he will

inherit is in excess of $2m and the younger brother gets the other $2m. The eldest brother

also owns his own home.

Comments by Wills & Estate Specialist – Terry Johansson

Whilst it seems most unfair that the brother who contributed so little to the family welfare

gets an equal share, the basis of claims to contest a Will is financial: in this case the brother

who gave so much to the parents would probably be unsuccessful in claiming any more than

half, because it will be difficult for him to prove financial need. He may have other grounds

to make a claim, such as money owed by the parents, and in fact if he has contributed to the

maintenance, welfare and upkeep of any of the properties, he may claim an equity which

gives him some prior ownership rights.


Commence a Will Contest Claim: Farming sister cannot prove financial need

A woman who is quite poor and was brought up on the family farm, has found that when her

mother died everything had gone to the two brothers who worked the farms all their lives.

She gets nothing except a small bank account. Her contribution to the family farm was

minimal: as soon as she could she started working in the local town and it was her brothers

who helped the parents. Is she entitled to contest the Will?

Comments by Wills & Estate Specialist – Terry Johansson

Based on the above, she appears to have financial need, and although it is unfair for

everything to go to the two brothers she will find that there will be some opposition if she

tries to bring a claim, as her claim is not strong. Firstly this is a “lumpy asset” which means

that the Court will be reluctant to order the sale of the farm to provide her with a benefit,

particularly when she contributed nothing directly to the building up of that asset. This is

because it is the brothers who helped the parents build up the assets, and the courts may be

reluctant to order a sale of the farm to meet any award that she is entitled to. Secondly, she

did not make a large contribution to the building of any other of the family assets.

Nevertheless the Court may order the brothers to pay her a lump sum, and they can then

mortgage the farm to help raise the loan monies, in order to pay her out. As she has

contributed nothing to the farm, she cannot say that she has an “equity” in the farm, so as to

give her partial ownership. The best hope for her will be if the brothers are able to raise the

finance to pay any award, rather than the court having to order that the farm be sold.


An estate administration/interpretation issue: Father dies: which assets are in his estate?

A father died leaving two sons. The younger son has found out that on his father’s death there

was a house in his father’s name worth about $600,000. The father held a joint bank account

with the older son of $150,000 which the younger son understands is not part of the estate as

it goes automatically to the joint account holder (the older son). The other main assets held by

the father include a life policy of $100,000 which has been assigned to the older son and

therefore is not in the estate, $200,000 held in a superannuation fund where the beneficiaries

are to be determined at the discretion of the trustees, and $50,000 in a superannuation fund,

where the older son has been named in a binding nomination as the sole beneficiary. The

younger son needs to know what assets are actually in the estate.

Comments by Wills & Estate Specialist – Terry Johansson

In all States of Australia, the money in the joint bank account, will pass automatically to the

older brother and is not in the estate. The life policy is also not in the estate as the brother is

the effective “owner”. Superannuation money is not in the estate, but is payable in respect of

the death of the deceased, and often goes hand in hand. When challenging the Will the

younger son will be able to bring his claim in respect of the house, but not the other assets. If

the deceased lived in New South Wales then to the extent that the estate is not large enough

to pay the Award to the younger son, half of the joint account monies may be retrieved by the

Court and used to pay the award. Superannuation monies are separate, and the younger son

may be able to claim same in addition to his claim against the estate. If he brings a claim for

further provision (challenges the Will) then the estate assets will be the house and the

$50,000 superannuation. He will not be able to access the funds that are subject to the binding

nomination, but will be able to make a claim in respect of the monies payable on a

discretionary basis.


Commence a contested will claim: Claims by Step-children – General Principles

The number of marriage breakdowns ending in divorce has been increasing over many years. Some

authorities put the likelihood of a first marriage failing at one in three; this likelihood increases with

second and subsequent marriages to one in two.

Frequently married couples make “mirror wills” where each leaves everything they have to each

other, and the last of the couple to die leaves the estate to the children of the marriage. Second

marriages complicate the situation faced by a testator who has children from a first marriage to

consider as well as the expectations of a spouse.

The situation some people find themselves in is where their parent is the first to die, the stepparent

then makes a new will, leaving their estate (which may include assets brought to the marriage by the

deceased partner) to their own relations and not to the partner’s children. A further complicating

factor can be that the assets are owned jointly and pass straight to the surviving spouse without

forming part of the deceased estate.

A stepchild is an eligible claimant for further provision in all jurisdictions of Australia. The courts

have taken account of the origin of the assets of the surviving partner and have made provision for

the stepchildren where the stepparent benefitted from assets brought into the marriage by the

deceased’s first partner.

In circumstances where there had been an agreement between the spouses regarding the

disposition of the estate, of which the children were aware, and from which the surviving spouse

departs, the court has also held that further provision should be made.

However, where second marriages end in divorce, usually the eligibility of a stepchild to claim

against the estate of a stepparent ceases too. Once the blood relation has died, the stepchild has no

claim on the estate of the stepparent.

Although it is unusual, the couple could make mutual Wills that prohibit either of them changing

their mirror Wills. This will give a remedy to any step-child who loses out if the survivor changes

their Will.

Comments by Wills & Estate Specialist – Terry Johansson

It is always worth a phone call to a lawyer to get advice on your position- because every case is

different. CWPL has the expertise to carefully analyse the facts and apply the law in each jurisdiction,

whether in Australia or overseas.

Terry Johansson and the CWPL team is up to date on the latest cases in this area and will be able to

advise in detail on your particular circumstances.

00683.6/21198/AL/JJ/201-/AU/C/XXX/- /FAS/QL/?

Commence a Will Contest Claim: Complications when a person who is contesting a Will loses capacity

Often the plaintiffs in will disputes and claims for further provision are elderly, and sometimes they

become involved in a protracted legal dispute.

What happens when the plaintiff starts to display the early signs of dementia? Surely they will be in

even greater need of provision from the deceased’s estate as the progress of dementia and

Alzheimer’s disease is irreversible and incurable.

Where one party is losing the capacity to give instructions to their legal team, there are serious

implications for the conduct of a court proceeding. Frequently the only option is to appoint a

litigation guardian for the remainder of the proceeding. This involves making an application to the

Court for such a person to be appointed. This is usually brought by the plaintiff’s lawyers.

In one such case, a widow contested her husband’s Will, claiming she was not properly provided for.

It was her deceased husband’s second marriage and he had children from his first marriage. These

step-children, who had previously had a good relationship with the widow, were very reluctant to

settle the widow’s (her) claim. Two unsuccessful mediations were held and the proceeding dragged

on for 3 years.

When the widow began to exhibit signs of dementia, her lawyers indicated that they would be

seeking the appointment of a litigation guardian or “next friend”. Then her step-children applied to

the State Administrative Tribunal for orders appointing them as guardians and financial

administrators of her estate.

The Tribunal, perhaps not surprisingly, refused to appoint them as guardians and financial

administrators, as they were disputing her claim for more from the estate. At the same time. The

Court appointed the Public Advocate as her guardian and the Public Trustee as administrator of her

estate. The Public Trustee acted in the proceeding as litigation guardian also.

As a tactic, the application for guardianship and administration by the defendants had the effect of

further delaying the determination of the proceeding. Because there was a clear conflict of interest,

it was never likely that the Tribunal would appoint the defendants in the proceeding as the guardian

of the plaintiff. As the estate was not large, the delay was only likely to incur further legal costs

which would further reduce the pool of funds available to settle the proceeding.

There is also the issue that if a person who is challenging the Will dies before the matter is settled or

heard by the Court, many of their rights die with them. By delaying the hearing of the claim by the

widow, her step-children may have hoped to avoid a payout by trying to delay any hearing until after

the widow died.

Comments by Wills & Estate Specialist – Terry Johansson

It is always worth a phone call to a lawyer to get advice on your position- because every case is

different. CWPL has the expertise to carefully analyse the facts and apply the law in each jurisdiction,

whether in Australia or overseas.

Terry Johansson and the CWPL team is up to date on the latest cases in this area and will be able to

advise in detail on your particular circumstances.

00683.6/DR21198/AL/JJ/201-/AU/C/XXX/- -FSP/CA/?