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

The son is one of three children, and he has only just found out that his mother died some ten

years ago.

He then found that the family home was sold, and has seen a Will leaving everything to his

two sisters and nothing to him.

He wanted to know whether he could bring a late claim to contest the Will.

Under the laws in the State in which he lived, he would need to bring a claim within six

months of the date of probate, which would mean that any claim made today would be some

five years late, as Probate was granted five years after her death.

It is possible for a person to make an application to the Court that they be permitted to make

the claim late, and the Court may agree in certain circumstances.

He claims that he did not know that his mother died and only just found out, and that his

sisters had hidden this from him.

However, he had not seen the mother for some 30 years, and he cut contact many years ago

as a deliberate act. Furthermore he was well off, and has no real financial need.

In any application to the Court for permission to make a late application the Court will

enquire as to the strength of the claim. Unless the Applicant has, on the face of it, a

reasonable claim, the Court would be reluctant to give their consent.

In view of the fact that he has actively cut his mother out of his life for some 40 years, and

has no financial need, the Court may declare that he does not have a strong claim, and may

not grant him consent to apply to bring a claim late.

00683.6/CQ/BLU/20165281/C/C/XXX/29/02/2016/MAC/LA/?

A son was concerned because he has found that under his father’s Will, the father has left his

assets to his uncle, the father’s brother. This means that the uncle has effectively ended up

with the inheritance the son thought he should take.

The son has financial need, and the uncle who is well off and quite old, has no financial need

whatsoever.

The son had a good relationship with his father and it would seem that he would be entitled to

contest the Will and make a claim for further provision from the estate, due to the

relationship and his financial need.

However upon looking at the titles to the father’s properties, it was found that they had been

transferred to the uncle some years ago, with the father having the right to live in what was

seen as the family home until his death. The son thought that this property was his father’s

house but it turns out to be his uncle’s house all the time.

The son concedes that there appears to be nothing legally wrong with the transfer of the

assets to the uncle many years ago. If those transfers and any gifts involved were valid, it

seems that then essentially the father has died with nothing. The son would need advice on

whether or not he should contest the Will as he may find that there are no estate assets at the

date of death.

00683.6/CQ/HAR/20165274/C/C/XXX/29/02/2016/CF/QL/?

A husband recently lost his wife.

The wife had recently lost her own father, and just before the wife died she found out that she had been cut out of her father’s Will.

There were no other children, and this seemed extremely unfair to her and she was contemplating legal advice against her father’s estate at the time she died.

Had she brought the claim before she died it might have been possible for some claim to have been made against the estate of the father. Because she had now died, her claim died with her, and so her surviving husband would be unable to contest the Will on her behalf. However there may be other options which come to light after further investigation.

00683.6/CQ/OG/20165265/C/C/XXX//29/02/2016/QL/EC/?

Effect on Unmarried Couples

One group of people who will be affected are those who were living with td at the date of death as their partner/de facto spouse, including any same-sex relationships.  Under the changes, that person will need to prove that they are a dp.

Spouse

A person who was married to td is described as a “spouse “and a spouse is entitled to claim, regardless of ether or not they were living with td at the dod.

Registered “domestic partner”?

A registered domestic partner is a dp whose relationship with td has been registered under the Relationship Act 2008 (Vic).  They stand in a very similar positon to a spouse when it comes to being entitled to claim: so long as the relationship is registered they will be able to claim.

Unregistered “domestic partner”?

An udp is simply someone who is living with td without the relationship being registered.  It includes a same-sex partner.

An udp will not be able to claim unless you can prove that you were in a dpp i.e. that you had lived with td as one of a couple on a genuine domestic basis for two years immediately before their death.

Nick????? or is the parent of the child of the person: so no time limited if td is a parent of the partner’s child???

How do you establish that you are an udp

When determining whether a person was in an unregistered domestic partnership, all the circumstances of their relationship are to be taken into account, including the factors in s35(2) of the Relationship Act 2008 (Vic).  These factors include things such as:

• the degree of mutual commitment to a shared life;
• the duration of the relationship; and
• the nature and extent of common residence.

Each of these factors can easily present a problem for a person who is an udp (see the next 3 headings) and under the new proposed laws they have a burden that did not exist before.

It will turn out that may claimants who are udpartners will not be able to prove a continuous two year relationship, or may have difficulty in establishing things such as there being a common residence and mutual commitment.   Let us look at some examples.

Establishing the nature and extent of common residence

Problems may arise for:

• Those who live in their own home with their partner, and also both of them share some other home such as their partners home, or some other place such as a rented 2nd home;
• Those who are temporarily forced to work away from home, on a regular basis where they have a residence provided for work purposes eg a flat near work;
• Those who do not share bank accounts with their partner;
• Those who do not share expenses or incur joint living expenses eg if they each contribute 50/50 to the bills as they come in;
• Those where all of the household accounts are in one name.

The degree of mutual commitment to a shared life

Problems may arise for:

Those in discreet or secret relationships, where their living together is not common knowledge.  This may make it difficult for the survivor to prove that they were committed to each other, as they were rarely seen as a couple.

This can be a particular problem for older person who have both been married and their spouses have died: frequently there is a lot of family pressure for them not to forge new relationships many such people commonly keep their relationship a secret, and may even deny it to their families.

Gay and lesbian persons may also have difficulty in presenting themselves as a couple, even though they may have been involved in a life-long relationship, comparable to most marriages.

The duration of the relationship

The new rules require that those living in an udpp must have lived together on a genuine domestic basis for two years immediately before the person’s death, in order to claim.

Problems can arise if:

Before the death of the deceased but the relationship had been re-established at the date of death.  Additional problems arise if there had been no reconciliation before death.

There was a break in the relationship: eg after living together for 30 years, there was a break in the relationship in the 2 years before the death of td;

One of the parties has had to re-locate from their mutual residence, and live in employer-provided housing at a remote location, in order to go to work;

One party is in hospital or jail in the 2 years eg the deceased developed dementia and was in a nursing home for the last 18 months of their life.

How are these Questions Resolved?

Ultimately a decision may need to be made by a court, but most claims settle at mediation.

However, in order to bring the issue out for a decision, the claimant will usually need to commence a claim in the court, and be prepared to take the risk of losing in Court if the matter cannot be settled beforehand.

In practice most claims settle at mediation.

If the claim is unsuccessful because the claimant is unable to establish that they lived in an udpp, not only would the claimant be required to pay their own legal costs, it is likely that the court  may order them to pay the legal costs of the estate as well.

This is unfortunate as many people who are entitled to claim, may decide not to proceed, rather than take the risk of failure.

The best thing for someone to do is to contact a solicitor who is specialised in the estate litigation area, for an opinion, and to try to engage their services on a no win no fee basis.

Dictation from Terry:

Victoria recently changed the category of persons who are able to contest a Will i.e. bring a claim that a deceased person did not make proper provision for them in their last Will (or as a result of any intestacy), and asked the Court for an Award of money or property in compensation.

From 1 January 2015, only people who fit within a particular category of claimant may be able to make a claim.

One category is a “spouse” or “domestic partner”, as at the date of death.

One group of people who were affected by the changes are those who were living with the deceased at the date of death of their partner/defacto spouse, including any same sex relationships.  Under the changes that person will need to prove that they are a domestic partner.

Spouse

A person who is married to the deceased is described as a “spouse” and a spouse is entitled to claim, regardless of whether or not they were living with the deceased at the date of death.  As Australia does not recognise same-sex marriages, a same-sex person must be a “domestic partner” in order to make a claim.

Under the Act, some same-sex relationships are ? recognised.

Unregistered domestic partner

Many partners, of whatever sex, do not enter into registered relationships.

An unregistered domestic partner is simply someone who is living with the deceased without the relationship being registered.  It includes the same-sex partner.

These relationships were commonly called “defacto relationships” in the past, referring to unmarried persons of the opposite sex.

An unregistered domestic partner will not be able to claim unless they can prove that they were in a domestic partnership i.e. they must establish that they had lived with the deceased as one of a couple on a genuine domestic basis for two years immediately before the death of the deceased, or did so for ? and were a parent of the deceased’s child who is under the age of 18.

The proposed laws that they have the burden of establishing the relationship, a burden that did not exist before.

Those who live in their one home with their partner and also some of them share some other home such as the other partner’s home or some other place such as a rented second home.  Additional problems can arise if each partner still owns their own home and the parties live between the two.

A partner who is left at home for an extended period because the deceased partner spent extended periods in hospital or a nursing home, prior to their death.

Backup Claim

A person who is not qualified as an unregistered domestic partner may be able to claim under category (k) of “the eligible person” set out in the legislation, by establishing that at the date of death, they were a member of a household of which the deceased was a member.

Most claimants who had been living with the deceased should be able to fit within this category, even if they are not a domestic partner, but they must pass the following tests:

(a)   Establish that they were wholly or partly dependent upon the deceased at the date of death;

(b)  The amount that they can claim must be proportionate to the degree of dependency.

Before commencing a claim, a person should obtain an assessment from a specialised lawyer working in the Wills and Estates litigation field, as to whether they are an “eligible person” and the amount that they are likely to get as an Award.

Anyone who makes a claim without full consideration of this issue may find that they need to withdraw their claim and pay their own legal costs as well as the legal costs of the estate.

How no win/no fee arrangements may help you

It may be advantageous to engage a lawyer who offers a no win/no fee arrangement: under this arrangement you will then only need to pay the legal costs from any settlement monies received as a result of the action, so that if the action is unsuccessful, you should not be up for your own lawyer’s costs.

If you are offered a no win/no fee arrangement, you can be reasonably confident the solicitor obviously anticipates a good outcome for you.

You will also obtain the advantage of not having to pay your legal costs until a successful outcome is obtained, and then the amount payable to you can only be payable if the Settlement Monies are sufficient to cover those fees.

Shop around before you agree to any particular no win/no fee plan, and avoid any plan where you are asked to contribute to barrister’s fees and court fees as you go, from your own pocket.

Try to find a plan that involves you in no payment whatsoever until the case is over so that you can pay the fees from your settlement monies.

CWPL can send you a comparison guide on no win/no fee plans, to help you decide which plan is best.

The inquirer in this case was a middle aged brother of his deceased sister, who expected a substantial inheritance from his sister when she died.

The sister had inherited all of the assets held by both of her parents on their deaths, and as it was a considerable sum of money, she promised her brother that on her death she would leave her inherited  assets to her brother.  On that basis the brother did not contest the Wills of either his mother or father.

The sister did make a Will to that effect and so her brother anticipated he would benefit when his sister died, as she was  much older than him

There were no other children and the sister was unmarried.

Just before she died the sister married the man of her dreams, but did not make a new Will.

After the sister died, the brother wanted to know about his position.

The effect of the sister marrying was that any Will that she had made before the marriage, was revoked.  Because the sister had not made a new Will, she effectively died intestate, and the  Intestacy Rules would determine how her assets are to be divided.

Under the  Intestacy Rules, the new husband will inherit everything as the sister had no children.

The inquirer wanted to know whether he could claim money from her estate by contesting the  Intestacy Rules, claiming that the  Intestacy Rules operated unfairly.

As there was no enforceable formal agreement as to how the sister was to leave assets to the brother, and the brother was well off and not dependent on the sister, he could not contest under the  Intestacy Rules.

If the sister had made a new Will leaving everything to her new husband, the result would be the same, in that the brother could not have contested the Will.

The deceased is the aunt of the inquirer.  The aunt died with no relatives except for two nieces.

She died without a Will and the nieces take under the Intestacy Rules.

The death occurred ten years ago and one of the nieces took out Letters of Administration but did not administer the estate. She moved into the property (which is the major asset worth some $3 million) and has lived there ever since.

The inquirer wants her inheritance.

This is not a challenge to the Will as the inquirer is happy with her share but she wants her inheritance.

In order to claim her inheritance, she will need to either have the executor removed, and then bring about a sale of the house herself, or she will need to take legal action to have the executor exercise her obligations under the Letters of Administration, wind the estate up and give a half share of the house to the inquirer.

The inquirer will also ask for damages, interest, and compensation for the fact that the executor has been improperly living in the house.

The inquirer is concerned about the death of her father who migrated to Australia some years ago from France.

On his death he had a number of properties in Sydney, and many other properties back in France.

The inquirer lives overseas and did not see a lot of her father but was still close and he had supported her financially over the years, so there seems to be sufficient family connection for her to claim.

However her brother who lived in Sydney turned the father against her daughter, and the father left her out of the Will.  The father left everything in Australia to his son’s children, but did not mention the assets in France in his Will.

The estate’s size is approximately $4m.

The inquirer has financial need, and the key thing is to see what assets can be claimed if she contests the Will.

Although NSW law purports to extend to real estate overseas, the law of  France will determine who shall inherit  the assets in France and the law of NSW will deal with who takes ownership of the Sydney property.

Accordingly she can bring the claim in NSW to challenge the Will, and the assets in NSW will be available to meet her claim.

In relation to the properties in France, it will be up to the local law to determine what share, if any, she takes, and the NSW Court will not be able to vary that.

However in making its award in NSW, the NSW Court will of course look to what  money the daughter may be entitled to in France, and if she is sufficiently provided for from the assets in France, they may make a decision that she shall have no entitlement to anything from the NSW assets.

The inquirer, an adult son has found that since his father died, that nothing has happened in relation to winding up the estate.

He contacted his sister.  The sister had a Power of Attorney over the father’s estate, and said that all of the money had been given to her by the father before the father died, and there was nothing left.

The father had moved in with the sister, sold his house, and perhaps all of his funds had been pooled with those of the sister.

The sister also said the father had given her a gift of $200,000, and had employed her and paid her $900 a week for looking after him.  The inquirer also believes that the sister’s husband was  receiving a carer’s pension for looking after his father-in-law

Under the legislation for Powers of Attorney the sister should be liable to repay any monies misappropriated, but this can be difficult to prove, and it can be very hard to trace funds.

This is not a Will dispute problem, but more a matter of fraud and abuse of a Power of Attorney.

If funds can be claimed back and they go back into the estate, then perhaps the inquirer can contest the Will successfully, so long as he has financial need and had a sufficiently close relationship with the father.