FAQs – Inheritance Claims & Contested Estates

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1. There is a dispute in my family about how much someone should receive under the Will of a relative who has recently died – what should I do?

Every State & Territory in Australia has Family Provision legislation, which permits some categories of persons to claim greater provision out of a deceased estate than that provided in the Will. Time limits apply, so prompt advice from a senior expert lawyer specialising in estate litigation is essential.

2. My relative made a DIY Will which looks odd – what should I do?

If you act quickly enough, a specialist Probate lawyer can lodge a Caveat for you upon the suspect Will at the Probate Registry of the Supreme Court of South Australia to prevent anyone from further administering the estate without you being notified. The Will itself can be challenged on a number of grounds, including duress, undue influence, fraud, lack of capacity, lack of informed consent, improper execution and others. Prompt advice from a senior expert lawyer specialising in estate litigation is essential.

3. My relative was unwell and lacking capacity when they made their Will – what can I do?

If you act quickly enough, a specialist Probate lawyer can lodge a Caveat for you upon the suspect Will at the Probate Registry of the Supreme Court of South Australia to prevent anyone from further administering the estate without you being notified. The Will itself can be challenged on a number of grounds, including duress, undue influence, fraud, lack of capacity, lack of informed consent, improper execution and others. Prompt advice from a senior expert lawyer specialising in estate litigation is essential.

4. There is a dispute with my relative’s superannuation company – what can I do?

Prompt advice from a senior expert lawyer specialising in estate litigation is essential. Almost everyone misunderstands how Super payouts work – Binding Death Benefit Nominations (BDBN) will only be valid and effective if the nominees qualify under federal legislation at the date of death of the deceased. A BDBN is NOT like a Will – the owner of the Super does NOT get to simply nominate whomever they wish to receive the Super funds upon their death. Even if they have nominated a person, that nomination will not be effective unless the nominee qualifies at the date of death.

5. What is the difference between challenging a Will and challenging an estate?

A Will can be challenged on a number of grounds, including duress, undue influence, fraud, lack of capacity, lack of informed consent, improper execution and others. This type of challenge is comparatively rare. Prompt advice from a senior expert lawyer specialising in estate litigation is essential. Challenging an estate typically means making a claim for greater provision under State Inheritance Family Provision laws. This type of claim is becoming increasingly common.

Who can challenge a Will / estate?

Only certain categories of persons with genuine interest in an estate will have standing to challenge. Typically this will include spouses & children of the deceased, and perhaps other people who were financially dependent upon the deceased during their lifetime, or people who have a reasonable expectation to have benefited under the Will.