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Wills, Probate & Claiming Your Rightfull Inheritance
When a person dies leaving a Will, this should set out how all the property of that person (legally known as their Estate) is to be distributed.
Many typical Wills leave property to a spouse or a partner, and then to children often in equal shares.
What is Probate? What are Letters of Administration?
When a person dies leaving a Will, before the person nominated by the Will to carry out its terms (called the Executor) can divide up the property they must first obtain formal Court approval that the Will they have is indeed the last Will. If there is a later Will for example then the earlier one will not apply. Probate simply refers to the Court process that establishes legally, i.e. proves, the validity of the last Will.
Applying for Probate involves filing the Will along with certain documents in the Supreme Court. When Probate is granted the Supreme Court will issue a special document with a Court stamp attached to a copy of the last Will. This document, commonly known as the Grant of Probate, can then be used to show banks, real estate agents etc that the Executor has proper Court authority to carry out the terms of the Will. Accounts can thus be closed and property sold using this document.
When a person dies without a Will it is still possible for someone such as their spouse to apply for Court permission to deal with their Estate. Instead of Probate the Court issues another document known as Letters of Administration. This allows the Administrator (as the person applying is called) to divide up the Estate according to the specific shares and entitlements set out by law in the Administration and Probate Act 1958.
Being left out of a Will
Sometimes for whatever reason a person may decide to exclude someone (such as one of their children) who might have expected to receive a share of the Estate. Alternatively they may leave them an unfairly small share. When this happens the courts can change the distribution under the Will to ensure they receive a fair share.
This means that what a person says in their Will may not be the final word on the matter.
Challenging a Will
Challenging a Will may involve bringing a claim in the Supreme Court asking for a share or perhaps a greater share of the Estate. The law gives rights to certain classes of people such as spouses (including de facto spouses and same-sex de facto partners) and children of the person who died to make a claim if they have been left out of a Will or been left an unfairly small share.
This is because the law imposes a duty on people to make proper provision for their spouse and children. This can apply even when there has been a falling out in the family, or people have simply drifted apart.
In other cases challenging a Will may involve arguing that the Will being filed with the Court for Probate is not the last one i.e. some other later document is in fact the last Will, possibly even if it has not been signed. Alternatively there may be an argument that the Will was not properly made e.g. when the person was not in a fit state to understand what they were signing on the date the Will was made, usually because of illness or mental impairment such as dementia.
Claims by loyal helpers and friends
In some circumstances it may be possible to make a claim where someone has loyally helped out the person who died over a long period, such as doing their shopping, looking after them during illness, or taking care of their property, to name some examples.
A person who was not the legal child of the deceased but was treated like one of their children, e.g. a step-child, may also be able to bring such a claim.
In these cases the law may impose a duty on the person who died to leave something to the helping person for their loyalty, or to a person always treated like one of the family.
Can I do the case on the basis my legal fees are paid from my share of the property?
If we believe you have a strong case and there is significant property in the Estate we may be able to run your case on the basis we receive payment of our fees at the end of the case. You are more than welcome to book a free interview if you would like to discuss this further.
Should you seek legal advice as soon as possible?
If you believe you may have an entitlement to more than a Will has left you, or an entitlement as a loyal helper or friend, or if you believe there may be a question over what really is the last Will, it is important to seek legal advice without delay. There are strict time limits for bringing such claims after which it may be impossible to do this. In Victoria, for example, claims to challenge Wills or seek a share of an Estate must be filed within 6 months of Probate or Letters of Administration being granted in the Supreme Court.
We are happy to book a free appointment at short notice to discuss this with you if you wish.
How do I make a Will that can’t be challenged?
Many people believe that a Will is the safest way to ensure their last wishes are carried out. However as shown above the law allows certain people the right to challenge what a Will says. This means that no matter what you put in your Will anyone with a legal right to bring a challenge could have this changed by the Court after you die.
If you wish to have better control over the people to whom you leave your property a Will may not be the best way to do this especially if you think someone will challenge it. Instead you may need to organise your affairs ahead of time such as by setting up a Family Trust or Self-Managed Superannuation Fund so that your property is already effectively disposed of before you die. In Victoria this means it will not come under any Will and therefore not be open to the type of challenge referred to above. (NB the situation may be different for property in NSW).
For more information on this you may wish to read the section entitled Asset Protection and contact us for a free appointment.
If you would like a free 30 minute interview to discuss any of the above information please contact us.