Estate Litigation

What is Estate Litigation?

When someone passes away, they often leave behind assets (such as cash in a bank account, a house, shares, a car) and more common than not, debts (such as a mortgage, credit cards, car loans).  These assets and debts form a deceased person’s ‘estate’.

If the value of the debts is greater than assets – there is rarely any dispute.

However, when the assets are greater than the debts, there are often disputes that arise about who is entitled to what.

Reasons for Contesting a Will

The following are the most common circumstances when you might contest a will:

If you were completely left out of a Will but think that you should have received something, you may be able to content the will. The success of any claim will depend on your relationship with the deceased and any support or contact you had with the deceased prior to their death.
If you are not happy with your share and if someone received a larger share then you, you may have a valid claim against the estate.   This claim will depend on your relationship with the deceased and any support or contact you had with the deceased prior to their death.  It will also look at what share you received and what share other people received of the estate.
If you have concerns a Will is not valid you may be entitled to contest the Will. There are certain legal requirements that need to be met for a will to be valid.
If there is more than one Will, usually the most recent Will is valid.  Despite this, in instances where there are significant differences between old and new Wills or concerns that someone was pressured or influenced to do a new Will, the newer will may be invalid.  If you have concerns there may be a more recent Will or if the deceased has told you things that are inconsistent with the Will that is produced, you may have a claim against the estate.
If the deceased was sick or ill before they passed away, they might not have been of sound mind when they were making a Will and the changes to their Will might not be valid. Particularly in circumstances when someone was suffering from illnesses such as dementia or Alzheimer’s new changes to a Will may be considered invalid. If you have concerns that the deceased did not understand their Will or may have been medically not fit to make a Will, the Will may not be valid and you may be entitled to make a claim against the estate.
If you have concerns that a family member or friend has pressured the deceased to change their Will before they passed away, any changes to the Will could be invalid. Tell-tale signs that someone might have influenced or pressured a Will maker:

There are significant changes when compared to any previous wills;

What you receive under the Will is different to what the Will maker told you.

A family member has made arrangement for the Will maker to change their Will without the rest of the family knowing;

There is a ‘falling out’ in the family;

If you have concerns that the deceased was pressured or influenced to change their Will, you may be able to challenge whether any such changes were valid.

If the deceased got married or divorced after they made a Will, their new Will might not be valid.  It is important if you are making a Will and you are considering getting married or divorced, that you discuss these matters with your lawyer before making the Will.  Divorces and marriages can make certain parts of a Will void.
If there is no Will the “next of kin” is usually appointed to distribute the estate.

The Estate is ordinally distributed amongst the immediate family such as the spouse/partner and any children (including step-children and adopted children). However, if you have a close personal relationship with the deceased you still may be entitled to receive something from the estate but would need to make claim against the estate.

What happens if my claim is successful or unsuccessful?

If your claim is successful in addition to any benefit you receive, the estate will also be required to contribute towards your legal fees.

However, even if your claim is unsuccessful, usually the estate will still be required to contribute towards your legal fees unless you have acted unreasonably.

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