Provision claims are by far the most common form of Will dispute. Under Queensland law, certain people (such as children, spouses, de facto partners and financial dependents) have the right to challenge a Will if they have been left out of the Will or they have been given an insufficient proportion of the estate.
Provision is obtained either by negotiating a grant of provision with the estate’s representatives, or by order of the court.
You will need to demonstrate that you have a financial need for provision from the estate (“Need”), and that inadequate provision was made for you in the Will (“Inadequacy”).
Like most areas of law, the demonstration and ultimate determination of need and inadequacy is a complicated process that calls for a close analysis of all of relevant circumstances, on a case by case basis.
Generally, to demonstrate need, you will be required to produce evidence that show that you have one of more of the following circumstances:
Once need has been demonstrated, you must establish inadequacy by showing that you have not been included in a Will, or one or more of the following:
Our team can expertly assess your situation and help you determine if you’re entitled to further provision. We can also help you negotiate that provision, either with the estate’s representatives or at court, and give you a better chance of success.
Cairns Wills and Estate Lawyers accept instructions on a no-win, no fee-basis in most cases – contact us to find out what we can do for you.
Interpretation disputes arise when:
Quite often, the interpretation of the Will can be the difference between you receiving what the Will maker rightfully intended you to, and getting nothing.
It is critical that interpretation issues are identified and dealt with at the earliest possible opportunity. This usually involves you communicating your interpretation of a Will to an executor and the beneficiaries as clearly as possible, and then asking them to confirm that they agree.
If there is a disagreement, it may become necessary to file a court application so that a judge can make a ruling. Like most legal proceedings, the process of obtain a ruling is complex.
To give yourself the best chance of getting a favourable interpretation from the court, speak with Cairns Wills and Estate Lawyers today.
You can challenge a Will if you believe that the person who made the Will did not have full mental capacity (“testamentary capacity”) at the time. To make a valid Will, you need to be at least 18 years old, and have the appropriate mental capacity – that is, you fully understand the significance of making a Will, and all that it involves.
Someone can lack capacity if they are suffering from a condition such as:
The process of demonstrating that a person lacked testamentary capacity usually involves a close examination of evidence such as:
Where it can be demonstrated that a person lacked capacity at the time their Will was made, the Will can be set aside and either an earlier Will is reinstated, or the person is deemed to have died intestate (i.e. without a valid Will).
If you need to challenge or defend a Will in a capacity dispute, speak with one of our lawyers today.
These disputes arise when someone puts pressure on the Will maker to write their Will in a certain way, and not in the way that reflects their true intentions.
Common examples of when this occurs are:
If it can be demonstrated that a Will maker was subjected to undue influence at the time they made their Will, the Will can be set aside.
It can be very challenging to establish that undue influence has occurred. Early action in undue influence disputes is critical to ensure that all available evidence is obtained before it’s lost or destroyed.
Cairns Wills and Estate Lawyers can help you investigate and get the right evidence to support your claim. Call us today.
An executor dispute arises when the executor of an estate acts inappropriately in the administration of the estate. This can include:
If you are the beneficiary of an estate and feel that the executor has acted inappropriately, you have the right to get the executor removed, and/or to seek compensation from the executor if you have suffered any loss as a result of their conduct.
Executor disputes are can usually be resolved without the need to go to court if they are dealt with early.
For expert local advice and assistance, contact Cairns Wills and Estate Lawyers.
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