Contesting a Will

Discussion in 'Wills & Estate Planning' started by skater, 21st Jun, 2018.

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  1. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Larry has links to the actual law above - for NSW which I presume is the jurisdiction of this matter (it may not be).
     
  2. larrylarry

    larrylarry Well-Known Member

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    Yes I assume it's in NSW and hence, Succession Act 2006 (NSW) is the relevant legislation dealing with Family Provision.
    As a matter of procedure, should a family provision claim be brought by the aggrieved person who is also eligible, the Court usually orders mediation after first Directions Hearing. Further costs will be incurred as a result of attending mediation. For a sizeable estate, it should not be an issue but for a small estate, parties should consider a compromise. Sound legal advice should be sought.
     
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  3. balwoges

    balwoges Well-Known Member

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    When my youngest son died of mesothelioma some years ago, his on and off girlfriend lodged a claim stating she was his de facto wife and had lived with him for several years. This was not true.

    As Jeremy was not married he named me as his executor and I had to fight the claim on behalf of his young daughter and spent the next 18 months in and out of court.

    After months of evidence flying around mediation was arranged – I wasn’t prepared to settle as I knew the other party was lying and suspected so did her solicitor. My solicitor advised me the judge would take a dim view if I didn’t settle at the mediation, which shocked me ...

    I was not prepared to pay her more than $10,000 dollars and this was finally agreed upon, even though her solicitors asked me if I would pay more as this amount would not cover their expenses!

    She was paid the agreed amount, which she had to sign over to her solicitor [she got nothing] – costs were $45,000 which was taken out of the bequests Jeremy had made to his two remaining siblings.

    It really got under my skin at the time and I felt the system had let me, and my son down. All these years later I am glad I didn’t pursue the case.

    What I am trying to tell you is don’t let your bitterness [sorry, should be feelings] cloud your judgement – give this person a portion of the estate, because years later, like me, you will be glad you let it go.
     
    Last edited: 22nd Jun, 2018
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  4. skater

    skater Well-Known Member

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    Sheesh! What is it with everyone thinking I'm bitter & vindictive? All I want is what the deceased wanted, even if I don't actually benefit from it. I'm pretty certain, given the circumstances, that my kids (the other beneficiary's) feel the same way.

    You don't know the whole sordid story & I'm not about to put it up here for public view. The deceased was adamant that this person NOT get anything. This is not my words, it is THEIR WORDS, and since I'm in a position where I don't need the money, and was never counting on getting any in the first place, I am happy for it to go in legal fees, so long as I'm not out of pocket. In fact, I told this person to give the funds to a charity, and not to me either.
     
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  5. balwoges

    balwoges Well-Known Member

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    Unfortunately its not what you want, its what the courts decide - my son did not want any part of his estate to go to this woman, but look what happened...
     
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  6. Sackie

    Sackie Well-Known Member

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    @skater fwiw I don't think you're bitter, just wanting to respect the wishes of the deceased. I think though that by going the course with the legal route, you (meaning the kids who the deceased wanted money to go to) may end up losing some, most, or all of their share which will be eaten up in legal fees etc and could take years to resolve with no happy party in the end.
     
    Last edited: 22nd Jun, 2018
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  7. wylie

    wylie Moderator Staff Member

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    @skater you know how I feel, that I know you aren't bitter. I know that you want the wishes of the deceased to be respected and followed. That is how we felt when we were challenged.

    And you know how our case turned out. There's no justice in the legal system sometimes. So don't risk losing more than the total of the estate if you do stand firm.
     
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  8. Westminster

    Westminster Tigress at Tiger Developments Business Member

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    I don't see it as being bitter or vindictive either.
    Unfortunately even if he/she had left it all the charity you'd still be in the same boat with a potential claim against the estate.
    Being an executor is hard work in a normal situation and this would be even worse.
    I'm going to go against practically everyone else and say that if you want to fight it and try and fulfill the deceased wishes then go for it. However do assess the risk to your own health/stress levels as it's not going to be easy.
     
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  9. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    I would suggest you seek legal advice about removing yourself as executor Skater as a conflict of interest is forming.
     
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  10. wylie

    wylie Moderator Staff Member

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    I'd take heed of what your lawyer has said and just continue on with the job you've been given as executor. See what comes along. I've learned not to worry about things I cannot control. It isn't easy, but I'm trying.
     
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  11. skater

    skater Well-Known Member

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    Well, this is the thing.....it's early days yet. The solicitor hasn't said much, except that no solicitor will take the case from the person omitted, as the costs would be too high....but we'll see. This other person IS very vindictive.

    I'm not sure what I have to do in all this as yet. I will definitely not allow it to give me the stress that it gave the deceased before their passing.
     
  12. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    This is certainly not the case.
     
  13. Propin

    Propin Well-Known Member

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    My friend went through this a couple of years ago. Same story, wanted to follow through with deceased persons last wishes. It ended in lots of legal fees and the other person was awarded some money. I would give them a small amount and move on. It’s not fair but that’s how it is.
     
  14. SatayKing

    SatayKing Well-Known Member

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    Yup, one good reason NOT to exclude someone from your Will. Possibly get legal/financial advice on what and how much to leave them but leave them something.

    Reasoning is I wouldn't want to put the Executor through the wringer due to my dislike of a person who may have a claim on my Estate.
     
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  15. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    This is a bit of an urban myth. some people think as long as you leave them something in the will they can't contest it. But this is definitely not the case.
     
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  16. Foxdan

    Foxdan Well-Known Member

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    Easiest way to leave someone out of the will is to make sure they are not written into it AND make sure they don’t find out you died for at least 12 months so they can’t contest.

    In some disjointed families that don’t communicate often, not telling the person is the easiest option.... can’t contest after 12 months
     
  17. Scott No Mates

    Scott No Mates Well-Known Member

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    I didn't realise that a will was a contest. Does that mean the beneficiaries win a prize?

    I've heard of some who had died intestate and executor had to advertise overseas for any offspring (even though they hadn't been OS for 50 odd years.

    I thought that you only needed to provide for dependents not non-dependents. What happens beyond that, I don't know.

    (I'll find out when an elderly relo passes & their estranged sibling living OS for 40+ years wants $$)
     
  18. larrylarry

    larrylarry Well-Known Member

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    Indeed my friend. Henry v Hancock - NSW Caselaw
    Para 64 -70 explains what the Court does when a family provision is brought.
     
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  19. wylie

    wylie Moderator Staff Member

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    We were contested after the twelve month cut off. There are circumstances under which that period will be ignored or relaxed.
     
    Last edited: 23rd Jun, 2018
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  20. ttn

    ttn Well-Known Member

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    Even though I am not good at English but I do like to read caselaw sometimes
     

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