Commence a Will Contest Claim: Ex-spouse claims – relevant issues

A woman learns that her husband has died, and would like to make a claim against his estate.

She feels that she was not treated properly, and it is unfair of the ex-husband to now died and

leave everything to a charity.

Comments by Terry Johansson, Specialist Lawyer

The first thing the wife must prove if she is going to challenge the Will in any way, is that she

is entitled to make a claim. In some States there is specific provisions for an ex-spouse to

claim, but only if they are receiving at that stage some form of maintenance, and/or if they

have not re-partnered and/or they were dependent upon the deceased and/or they had not

received a property settlement on the divorce.

Many ex-spouses who are totally independent will have no claim. At the same time they

need to investigate the terms of the property settlement if any: any ex-spouse who has not

received any property payment stands themselves in a stronger position, if they can show that

they are qualified to bring the claim and an element of dependency.


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 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 grant of probate issue: When should you call a lawyer about your concerns? As soon as any suspicious arises – DO NOT wait for a copy of the Will

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/?

A grant of probate issue: When should you call a lawyer about your concerns? As soon as any suspicious arises – DO NOT wait for a copy of the Will

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


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

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

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.


A testamentary capacity issue: Family want a court-made Will

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.


An estate administration/interpretation issue: Property left in Will disposed of before death

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.