Wills and Estates Lawyers Melbourne, Victoria

If you die without a Will, your Estate will be distributed according to intestacy laws. This means the state will determine how your assets are divided, which may not align with your wishes. It can also lead to delays, legal fees, and potential disputes among family members.

An Executor is responsible for administering your Estate according to the instructions in your Will. This includes applying for probate, paying debts, and distributing assets to beneficiaries. The Executor acts as the legal representative of your Estate.

Probate is the legal process of proving the validity of a Will and confirming the Executor’s authority to administer the Estate. It involves submitting the Will to the court, along with other documented formalities such as details of assets and advertising the application, where the court will verify that the Will complies with legal standards, and that the correct Executor is appointed before making a court order allowing the Executor to administer the Estate.

The time required for Estate administration can vary depending on the complexity of the Estate, whether there are disputes, and how long Probate takes to be granted. Generally, the process will take at least several months to over a year.

Contesting a Will refers to disputing the Will’s validity, while challenging a Will often refers to making a family provision claim, arguing that the distribution of assets was unfair or insufficient for eligible persons.

Typically, individuals who can contest a Will include close family members such as spouses, children, and dependents. Eligibility to contest a Will is determined by specific legal criteria, and advice from an Estate lawyer is often necessary to confirm eligibility.

When an individual dies, the Executor named in the Will advertises their intention to apply for Probate. When the advertising period has expired, the Executor then files the deceased’s Will, details of assets, and a copy of the death certificate with the court.

Victorian Statutes provide specific instructions regarding when and how to dispute an Estate. An eligible person (as defined by the Administration and Probate Act 1958 (Vic)) may challenge the Will for several reasons. For example, an Estate may be disputed if the Will doesn’t contain provisions for spouses or children, has an unequal division of assets between beneficiaries or due to the contents of earlier Wills. The probate judge may restrict contest actions by individuals who can’t prove a legitimate interest in the Estate.

If we advise that your claim has merit, we will begin the process of disputing the Estate. We will start to prepare your evidence and strive to resolve the matter as efficiently as possible, ideally with legal proceedings beyond mediation as a last resort.

The amount we charge varies depending on the complexity of the Estate, including the number of parties, the number of assets, the amount of instructions and the amount of correspondence required to be considered and drafted. As we cannot provide an estimated range under the Legal Profession Uniform Law 2014 (NSW), we cannot provide an estimate of our costs until all requested information is provided in our online form, along with any additional information requested shortly thereafter. This also means that our estimate may change at a later stage should further materials and other circumstances (such as additional delays caused by other parties) arise that were not contemplated at the time of providing you with a single figure estimate.

There are strict time limits of 6 months from the date that a grant of Probate in Victoria to lodge a Family Provision Claim. Although in some exceptional circumstances an extension of time will be granted. As such, it is important to speak to an Estate Lawyer as soon as possible.

Our Estate Lawyers can help you challenge a Will based on incapacity if you think that the deceased was not in sound mind at the time of writing it. The court will conduct a number of tests to determine whether the deceased had ‘testamentary capacity’ at the time that the Will was made, and they may need to review the Will maker’s medical records to assist in the process.

The Court Will take into consideration the relationship between a parent and child when considering a claim against an Estate. However, this is only one factor the Court looks at. When determining the amount to be awarded to someone who is Contesting a Will or claiming against an Estate, the Court Will also consider financial need. For example, if the child claiming against the Estate is financially worse off than their siblings who were close to the deceased, they may have a stronger financial claim to the Estate.

Your Estate Lawyer can advise you of the types of things that may be included in the deceased’s estate. The Executor should consider all assets and liabilities (including tax debts) that were in the deceased’s name at the time of their death so that an accurate value of the Estate can be established.

Some of the things that will form part of the estate include bank accounts, shares, vehicles, memorabilia and other personal items, as well as properties owned by the deceased. If the property is jointly owned, different rules may apply.

In most cases, a Will does not cover superannuation, which can have serious consequences for those left behind.

It’s important that your Estate Lawyer informs you how superannuation is dealt with in a Will contest case. Even if the sum in the superannuation fund is low, it is likely that the account will include a life insurance policy, which in some cases may be worth a considerable sum. Superannuation death benefits generally consist of contributions to the superannuation fund, as well as any life insurance held in the member’s account. If superannuation is not properly dealt with in the Will, it may end up in the hands of unintended recipients.

Yes, you can change your Will anytime, provided you have the mental capacity to do so. Significant life events, such as marriage, buying a home, divorce, or child birth, are good reasons to review and update your Will.

Yes, a Will can be contested on several grounds, including lack of testamentary capacity, undue influence, or failure to provide for eligible persons. Contesting a Will typically involves complex legal proceedings, so it’s important to seek legal advice if you believe there are valid grounds for a contest.

A family provision claim is made by someone who believes they were not adequately provided for in a Will. This claim allows eligible individuals, such as a spouse or child, to seek further provision from the Estate through the court.

Common grounds for contesting a Will include lack of testamentary capacity, undue influence, fraud, or improper execution of the Will. A family provision claim may also be made if someone believes they were not adequately provided for in the Will.

Yes, a Will can still be contested after probate has been granted. A six month time limit for the commencement of a proceeding applies.

Contesting or Challenging the Will of someone close to you who has passed away is a difficult and emotional process. The first thing to determine is whether you are entitled to make a claim against the Estate and your prospects of success. An Estate Lawyer can help you determine both of these things and can lodge a Family Provision Claim on your behalf. They will guide you throughout the process and provide advice.

The Executor of a Will can be removed by order of the Court if they are not carrying out their duties properly, if they have a conflict of interest, or if they are acting in a manner that is not in the best interest of the deceased.

If you are an eligible person to part of an Estate and believe the Executor of that Estate is not acting accordingly, you can apply to have them removed, however it is an extremely complex process and difficult to prove to a court. An Estate Lawyer can help you with this process and your prospects of success.

In most Estate Dispute cases they are resolved before going to Trial. In Victoria, Estate Dispute cases are subject to a court-appointed mediation, where all parties meet to resolve satisfactorily. In our experience, the vast majority of cases are settled at Mediation or shortly thereafter.

If your claim is not settled at Mediation, your Estate Lawyer can represent you in Court.

If you think that the deceased was placed under undue pressure or influence when writing their Will, Hentys Estate Lawyers may be able to assist you in contesting the Will based on undue influence. Our Lawyers will help you identify whether you have a claim and assist in obtaining evidence before taking the next steps in your Will Dispute case.

Our Estate Lawyers can help you if you were financially dependent on someone prior to their death and have found that you are not included in their Will. In this case, you may consider lodging a claim to protect your interests. Our Estate Lawyers can advise you on the best option moving forward.

In many cases, the deceased person may have superannuation death benefits that can be payable to relatives or anyone financially dependent on them, however, it is important to note that superannuation does not ordinarily form part of an Estate and therefore this can be a complicated process. If you are in this circumstance, our Estate Lawyers can assist you with in making a claim in respect of the deceased’s superannuation death benefits where you may have grounds to make an application.

Even if Probate has been granted by the Court, you can still give the Executor notice of your intention to contest the Will. Your Estate Lawyer will advise you on the best way to move forward with your claim under these circumstances. The usual time limits will apply.

As the de facto partner of the deceased, you may be entitled to a share of the deceased’s Estate. Your Estate Lawyer will help you determine whether you have a claim based on the following:

• the nature and extent of your common residence
• the length of your relationship
• whether or not a sexual relationship existed at some stage in the relationship
• whether or not you were financially dependent or interdependent on the deceased
• whether you jointly owned any property
• the degree of your mutual commitment to sharing a life together
• whether you both cared for any children together
• whether you shared household tasks and chores
• whether you were known to your friends and family as a couple

Whether or not you can challenge a Will of a deceased Estate usually depends on how you are related to the deceased. Your Estate Lawyer will be able to give you more accurate advice in this area, but in general terms, you may be able to contest a Will if you are the deceased’s spouse, de facto, child (including step-child) or dependent.