Planning your estate
Planning your estate for when you are no longer around is not something many people care to think about too much. If you do not plan for the future though, you risk your beneficiaries from missing out on the wealth and assets you worked hard to build up
LEGAL HELP TO ASSIST THE RIGHT PEOPLE AND STOP THE WRONG PEOPLE GETTING THE DECEASED ESTATE ASSETS
When a person dies (the deceased), it is necessary for someone to take charge of the assets of the deceased and to “administer the deceased estate”.
So if you live in Camden, Campbelltown or the surrounding area and are looking for Camden Lawyers or Campbelltown Lawyers to assist you then call Frontier Law Group now on (02) 4655-3100
If the deceased died leaving a valid Will, then the person named in the Will as Executor is responsible for proving the Will in the Supreme Court of New South Wales (if necessary) and then looking after the assets, debts and distributions from the deceased estate.
The process of proving a Will is called obtaining a Grant of Probate:
We do this for our clients.
If the deceased does not leave a valid Will, then it may be necessary to have someone appointed by the Court as “Administrator” of the deceased estate. This process is called obtaining a Grant of Letters of Administration: We do this for our clients.
When a Will or a deceased estate under Letters of Administration is challenged, it is the Executor or the Administrator who is sued by the Challenger/Plaintiff. It is important that you get legal help and advice when seeking to challenge a Will or deceased estate, or if you are responsible for defending a Will or deceased estate that is being challenged.
Challenging a will
The following are some examples of the basis upon which a Will might be challenged:
Forged Will – If it is proved that a Will is a forgery, then it will be declared void or invalid.
Will made under “undue influence” – If the Will maker was put under excessive pressure when making the Will, then it may be declared invalid.
Will made with a mistaken belief of important facts – This may indicate that the Will maker did not know or understand what they were doing or were mistaken as to the effect of what they were doing at the time when the Will was made, and accordingly the Will may be struck out and declared invalid.
Wills made in “suspicious circumstances” – The Executor has the onus of satisfying a Court that the Will is valid if “suspicious circumstances” are shown to exist. There are many examples of “suspicious circumstances”, but a common case is where a major beneficiary was involved in the making of the Will, the deceased was vulnerable at the time and secrecy and pressure was involved
Lack of Testamentary capacity – A Will may be invalid by reason of the Will maker lacking the mental capacity of soundness of mind to understand what a Will is supposed to do, the nature and amount of their assets and debts and their relationship with persons who might ordinarily benefit under their Will.
If a person dies without leaving a valid Will, either because they had made a Will but it was declared invalid (and there was no earlier valid Will), or they did not make any Will at all, then the assets of the deceased estate after paying out all proper debts and expenses are usually distributed among the next of kin in percentages which are set out in legislation. Disputes often arise concerning the distribution of the deceased estate among next of kin, usually spouses, children, step-children, former spouses and grandchildren as those in dispute often have different levels of financial dependency upon the deceased and/or they have varying financial “needs”. These types of disputes are commonly known as “family provision” claims and such claims can be made whether or not there is a valid Will.
In disputes that there is a valid Will the Court is asked to make Orders distributing the Estate different to that set out in the Will and where there is no valid Will, then the Court is asked to make Orders distributing the Estate differently to the proportion set out in legislation.
We are often asked to advise and represent clients:
- Defending the Challenge of a Will or resisting a Family Provision type claim;
- Challenging a Will and/or making a Family Provision type claim (it is common that a Will may be challenged with a back-up Family Provision claim if the Court is not satisfied that the Will should be declared invalid but is satisfied that the assets should be distributed differently from that set out in the Will; and
- Assisting in the making of Wills and Trusts with a view to avoiding successful challenges.
Litigation in the Supreme Court can be very expensive and legal costs can erode the asset pool. For this reason we try very hard from the outset to reach a reasonable settlement to avoid long and expensive Court litigation. The focus is on getting a fair and reasonable result for our client taking into account the associated costs, risks and likely outcomes.
In many cases we are able to defer any requirement for our clients to pay our legal fees until either the dispute is settled or a Court makes distribution Orders, such that our legal costs can be paid from the funds in dispute (preferred course) or otherwise from our client’s share in the distribution. Sometimes it is possible to obtain Orders that the losing party pays the legal costs of the successful party, so that the amount received by the successful party is not reduced by any of the legal costs of the losing party or the successful party.
It is important that you seek our legal advice and assistance at the earliest possible opportunity if you are seeking to make or defend a challenge of a Will or claim against a deceased Estate. As the old saying goes “a stitch in time saves nine”.
It is important to avoid making an unreasonable challenge or claim against a Will or deceased estate and it is equally important to avoid unreasonably defending such a claim. In both cases there can be significant adverse costs implications. Further, a Court may decline in proper cases, to Order that a party’s legal costs be paid out of the deceased estate, such that that party may have to bear their own legal costs as well as those of the successful party.
Call Frontier Law Group now on (02) 4655-3100