Rely on Experienced Inheritance Lawyers
Our experienced Perth inheritance lawyers are well-versed in matters of inheritance disputes and claims. If you feel unfairly treated after a loved one passes, or would just like to seek advice before considering making an inheritance claim or contesting a will, we can help.
Contesting Wills and Estates
There are two common ways to challenge or contest a Will. The first way relates to challenging the validity of the document itself. The second relates to challenging the Wills fairness. It is also possible to ask the Supreme Court to make additional provision to that which is given under S14 of the Administration Act 1903 (WA) in respect of intestate distribution (where there is no Will).
Challenging a Will’s Validity
These kinds of cases are extremely complex and costly. It is strongly recommended that you obtain independent legal advice prior to making an allegation of this kind. Where a Will is made in circumstances where the will-maker did not have the capacity to sign it the Court will declare it invalid. The Court may do so where the will-maker did not know of, or approve of, the contents of the document. Sometimes wills are procured in circumstances where the Deceased was unduly influenced, when he or she was affected by drugs or alcohol.
Challenging on the Basis of Fairness
In ancient times, the law of estate distribution set strict limits on what people could do with their assets. Roman law doctrines of “Primogenitor” and “Estates in fee tail” were commonplace (where assets passed to legitimate male heirs according to certain priority rules). The development of equal rights saw a social change in the approach to the ownership of assets after death. A testator’s moral obligation to provide for their widowed spouse became more valued by western society. Doctrines of “dower,” and “courtesy,” were abolished. People recognised that Estates in fee-tail tied up assets for multiple generations, leaving large stately properties with no cash reserves to maintain them. The common law saw testamentary freedom as absolute. That is to say, a person could do whatever they wanted with their assets according to the terms of their Will. From a liberalist perspective, this was a fantastic outcome. Regrettably, people reverted to old habits and decided to dispose of their assets in the same way as the old rules did.
A deceased’s Dependents were often disadvantaged. As society progressed, the law developed to a position where limited categories of applicants could ask the Court for relief against unfair distributions. The categories of people who could make claims were limited to dependents only. This is the current state of the law in Australia. The modern definition of “dependents,” has expanded to include spouses (whether de-jure or de facto), former spouses, adult children, infant children, stepchildren (in limited circumstances) and dependent grandchildren.
Grounds for making a Claim for Increased Provision
After a person has established that they fall into one of the categories of dependents then they are said to have “standing,” to make a claim. When the Court determines whether or not increased provision should be made for an applicant they ask themselves two key questions.
The first question is: Has proper and adequate provision been made for the applicant?
If the answer is “no”, the second question will be: What is proper and adequate provision?
In answering these two questions the court has regard to many different factors. Examples include: the intention of the testator, the nature of the relationship between the testator and the applicant, whether there has been any conduct toward the deceased which ought to preclude an applicant from provision, the overall size of the estate, the competing needs of other family members and dependents, the age, education and income earning capacity of the applicant (and their spouse, both now and in the future), their current asset position, and their current and future health care needs.
Find out more
Before considering making a claim it is critically important that people obtain independent legal advice in respect of their standing and the merits of a potential claim.
Contact our experienced Perth inheritance lawyers for the legal advice you need to move forward.
For assistance and advice relating to Inheritance Disputes and Claims, please contact our Perth Inheritance Lawyers today.