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Butlers Will Dispute Lawyers
Welcome to our Wills and Estates law site. Please take the time to carefully identify the specific area of law (below) you are looking for because Wills and Estates law can be complex and very confusing at times. Much of the legal language started hundreds of years ago in England and rarely is any answer “Black” or “White”… often there are multiple correct answers to questions.
Our website is broken down into the following 5 categories:
1. Challenging A Will
The word “Challenge” is commonly used in the community to describe proceedings alleging a Will to be invalid. You could say that this process is the opposite one to contesting a will. Challenging a will is challenging the validity of the will itself. You say the will is not valid and should not be approved by the court for a Grant of Probate. Generally until Probate is granted of a Will there will be no order made for the contesting of a will (family provision). Until, Probate is granted of a Will one does not know which Will to contest. “Probate” is proof of the will and gives the executor the authority to collect all of the funds and property of the estate and distribute them to the persons named in the will. The most common reasons for challenging a will are fraud, forgery, undue influence or lack of testamentary (mental) capacity of the will maker.
2. Contesting a Will
The word “Contest” is commonly used in the community to describe family provision law. This is a contest, if you like, between family members for the proceeds of a deceased estate. The law relating to the issues involved in such a contest is found in Family Provision Legislation in each state. There is usually no dispute regarding the validity of the Will itself but rather a dispute between family members one or more whom allege they have not been provided for or not properly provided for by the deceased upon the deceased death. It’s always a question of the financial need of family members contesting, not the actual validity of the Will itself.
3. Will Disputes
This is a general term for any other dispute. There could be uncertainty about the terms of the will. These cases are often referred to as “Construction Cases”. The court is asked to work out what the deceased really meant in his or her will. Other cases are about how the executor is administering the distribution of the estate. These cases are often referred to as “Administration Cases”. And there are many other disputes usually between the executor/s and the beneficiaries. Other examples include beneficiaries complaining about the manner in which the executor/s are administering or distributing the estate and sometimes ask the court to revoke the Grant of Probate and appoint another executor.
4. Defending a Will
The word “Defending” is often used to describe the action of firstly, defending a family provision claim (contested wills case) and secondly, defending a claim that the will is not valid. In other words, defending a claim as described in 1. or 2. Above.
5. Probate and Administration
(A) The word “Probate” means proof or validation of a Will. Before a Will can be said to be valid the Supreme Court of the State where the deceased lived permanently receives evidence regarding the circumstances surrounding the preparation and/or signing of the Will. When satisfied the Will is valid (either by a Registrar in office of the court or by a Judge in court in defended cases) the court issues a document referred to as a Grant of Probate. The grant is made out in favour of the executor.
(B) The word “Administration” refers to the situation where there is no Will and the court issues a document referred to as a Grant of Administration. The grant is usually in favour of the beneficiary who is entitled to receive the largest portion of the deceased estate. Because there is no Will the Legislation in each State provided a list of the entitlement of family members.