At Browne Linkenbagh Wills and Estates, we often help Executors, usually the current spouse, in contests relating to validity and arguments concerning the last known Will of the deceased.
An area of increasing litigation involves stepchildren in circumstances where the parties are in a second or third marriage and have a blended family. After a person dies, it is the role of the Executor to seek administration of the estate, and this is done after an Application for Probate is made.
In situations where one or more beneficiaries or potential beneficiaries dispute the contents of the Will, they may make an Application for Family Provision. This is known as a “Family Provisions Claim”.
If this happens, normally the Executor and their Solicitor would receive a letter that puts them on notice of this potential claim. This could be from the person themselves or via their solicitor or legal representative. At that stage, the estate is then put on notice that there is the potential for a claim to be made. Normally, each of the lawyers involved will then ask for further particulars of the alleged claim and, in particular, any details regarding what type of monetary compensation or award they are seeking.
Our office specialises in the area of Wills and Estates, and we always attempt to negotiate where possible. Unfortunately, in an increasing number of matters, the parties that are seeking Family Provision from the Estate will usually bring an Application in the Supreme Court as the Plaintiff (also known as Applicant) and seek provision from the Will.
We have already provided a lengthy article in relation to these types of Applications which we will not traverse again here, but in short, the process when a stepchild is challenging a Will is that:
- The Executor and/or their legal representative will normally receive notice of the challenge.
- This is usually in writing, setting out the particulars of the case and, in most circumstances, the amount or quantum claimed.
- It is usual that the person seeking provision may ask for the Application for Probate including the Inventory of Assets which sets out exactly how much was available in the estate at the time of the deceased's death.
- At our office, we will at that stage always seek to attempt to negotiate to see if a resolution can be reached amicably, or if the claim has no legal basis, we will indicate that to the person seeking provision immediately.
- Unfortunately, in a large majority of cases the Applicant will then proceed to file their claim in the Supreme Court seeking Family Provision, and that document by way of a Court Application would be served on the Executor via their solicitor. At that stage, the matter is starting the Court process. At this stage, the delays in relation to Family Provision Claims from the time of filing until judgment are approximately 12 to 16 months, depending on when the Application is filed and if the parties are ready to proceed to hearing.
Our office is a specialist in Wills and Estates and is able to assist in relation to Applications.
Please contact our expert team who deal with litigation of this type regularly.
Thinking About Challenging a Will? Get Trusted Local Advice
If you have contests relating to validity and arguments concerning a will, we can assist you in your application.
Browne Linkenbagh Legal Services offers clear, friendly advice tailored to your situation.
Contact our team for more information at info@browne-link.com.au or 47842177.