As a general rule you are entitled to dispose of your assets as you wish in your Will. You should, however, be aware of and take into consideration the provisions of the Inheritance (Family and Dependants Provision) Act. The Act provides that the distribution of your estate may be challenged if you fail to make adequate provision for certain family members.
Who can claim? Spouses, de facto spouses, children and parents and are all entitled to challenge your Will. In certain circumstances, former spouses, former de facto spouses and grandchildren are also entitled to challenge your Will.
The person making the claim must show that you did not make adequate provision from your estate for their proper maintenance, support, education or advancement in life.
The Supreme Court examines every application on its merits. The court is generally reluctant to rule against the wishes expressed in a Will, unless the person claiming can show some need for the inheritance over and above the needs of the beneficiaries named in the Will.
If you intend to contest a Will, time is of the essence. Court action contesting a Will must be commenced within 6 months from the date of any grant of Probate or Letters of Administration. The Court has a discretion to extend the deadline.
If a Will is contested the executor or administrator of the estate will be named as a defendant in the Court proceedings and will generally take a neutral role. Usually the beneficiaries of the estate are joined as parties to the action. If you are an executor and receive notice of an intended application under the Inheritance Act, it is prudent not to distribute any of the estate until you obtain legal advice.
The beneficiaries of the estate and the claimant may resolve the matter without court proceedings. In this case the settlement should be documented in the form of a deed of family arrangement to be signed by all interested parties including the executor.
For further information regarding the court process visit these related pages:
If you are considering challenging a Will it makes sense to know where you stand.
At an initial consultation we will give you some preliminary advice and an obligation-free quote estimate of the legal costs involved in the process.
If there are reasonable grounds for making or defending a claim and Court proceedings become necessary the Court may order that your legal costs be paid from the estate even if your claim is unsuccessful.
If you are an executor or beneficiary of a Will that is or may be the subject of a challenge we also recommend you consult us for further advice at an initial consultation.
In matters of this nature we may agree to act for you on the basis that some or all of our fees are paid at the conclusion of the matter.
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Find out where you stand at an initial consultation with one of our lawyers. We recommend an extended consultation ($770) for matters of this nature.
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