Contesting a Will ACT

Introduction

The words contesting a will refer to a family provision claim, not challenging a Will or a Will dispute. The law relating to contesting a Will in each State of Australia is different.

The following is a summary of fundamental information that any interested person will find helpful if contemplating a family provision claim in the ACT:


1. Claiming in ACT.

A claim can only be made in the ACT if either :

  • (a) there is real estate property owned by the deceased situated in the ACT and/or
  • (b) the deceased was domiciled (living permanently) in the ACT at the date of his or her death and owned personal property anywhere.

2. Obtaining a copy of the Will.

The following persons are entitled to inspect a Will of the deceased:

  • a) any person names or referred to in the Will;
  • b) any person named or referred to in an earlier will as a beneficiary;
  • c) the surviving spouse, de-facto or issue;
  • d) the parent or guardian of the deceased;
  • e) any person entitled to a share if the deceased has died intestate;
  • f) any parent or guardian of a minor referred to in the Will or who would be entitled to a share if the deceased died intestate;
  • g) any person/creditor who may have a claim against the deceased;
  • h) any person with management of the deceased’s personal estate immediately before death;

3. When there is no will in ACT.

The legal term when the deceased died without a Will is that the decease died “Intestate”.

In the ACT, the list of beneficiaries when there is no Will are as follows:

  • 1. If survived by partner but no issue then the partner is entitled to the entire estate.
  • 2. If survived by partner and issue:-
    • – If the estate is under the prescribed amount ($200,000.00) then the partner is entitled to the entire estate;
    • – If the estate is over the prescribed amount then:
      • – The partner is entitled to $200,000.00 plus interest on that sum (calculated as 8% p/a from the date of death to the date of payment) plus 1/2 of the balance remaining (if there is only one child or grandchild surviving in place of the child); OR
      • – If the deceased has more than one child, then the partner receives $200,000.00 plus 1/3 of the balance. The remaining is to be divided equally between the children;
    • – The children are entitled to the balance (if any) of the estate after payment to the partner.
  • 3. If survived by issue but no partner then the child/ren is entitled to the entire estate in equal shares.
  • 4. If survived by parent but no partner or issue then the parent/s is entitled to the entire estate in equal shares.
  • 5. If survived by next of kin, but no partner or issue then the estate is distributed in the following order of priority:
    • a) Siblings;
    • b) Nieces/nephews;
    • c) Grandparents;
    • d) Aunts/uncles; and
    • e) First cousins.
  • 6. If survived by no next of kin then The Territory is entitled to the entire estate.

4. The time limit to contest a Will in ACT.

Pursuant to the Family Provision Act 0969, s 9(1) the time limit in which to make a claim is within 12 months after the grant of Probate or Administration.

5. Eligibility to contest a will in ACT.

To receive an order for provision or further provision you must be an eligible person/applicant.

Pursuant to Section 7 of the Family Provision Act 1969 the following are “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person in ACT:

  • a) partner of the deceased (means spouse, domestic partner of 2 continuous years or parent of a child of deceased);
  • b) person who was in a domestic relationship with the deceased (two adults, one provides personal or financial commitment and support of a domestic nature for the material benefit of the other. It includes a domestic partnership, but not marriage. It doesn’t require membership of the same household. It cannot exist where fee or reward, or on behalf of an organisation e.g. a charity);
  • c) child of the deceased;
  • d) step-child of the deceased (must be maintained by the deceased immediately before death);
  • e) grandchild of the deceased (requires parent pre-deceased or grandchild not maintained by parent);
  • f) parent of the deceased (not entitled if deceased is survived by partner or children, unless maintained by deceased);

*Under Family Provision Act 1969, s 7(1)(b) a former spouse, de-facto spouse (NOT EXPRESSLY LISTED however may be eligible if in continuous relationship over 2 years or produced a child).

6. The evidence the Court takes into consideration in ACT.

The Court takes the following evidence into consideration:

  • a) any family or other relationship between the applicant and the deceased;
  • b) any obligation or responsibilities the deceased;
  • c) the nature and extent of the deceased’s estate and liabilities;
  • d) the financial resources (including earning capacity) and financial needs of the applicant (both present and future);
  • e) the financial circumstances of another person the applicant is cohabiting with;
  • f) any physical, intellectual or mental disability of the applicant or any other applicant or beneficiary in existence at the time of the hearing;
  • g) any contribution by the applicant to the acquisition, conservation and improvement of the estate or the welfare of the deceased;
  • h) any provision made for the applicant by the deceased during the deceased’s lifetime;
  • i) whether any other person is liable to support the applicant;
  • j) the character and conduct of the applicant before and after the deceased’s date of death;

7. When you don’t live in ACT.

Where you personally live has no bearing on your claim. The important factor is that the deceased lived in the ACT and the deceased owned assets in the ACT. A claimant can very easily make a claim from another State without leaving his or her front door. This is a common and frequent situation. What you don’t want is a lawyer acting for you without a thorough knowledge of the law in the State where you are claiming.

8. When you believe the Will is not valid in ACT.

You may be able to challenge the validity of a Will if you believe the Will is a forgery or if the person lacked the mental capacity to make a Will. You can also challenge a Will if you believe there was undue influence placed upon the Will maker in the will making process or if there was fraud involved. To research the Intestacy rules for South Australia please refer to question 3.

9. When where and how do you start in ACT.

When. Because estate funds can sometimes be sold, transferred or spent, if you are going to make a claim you should do so without delay. Otherwise you may have no assets or funds to claim upon.

Where. You may call any of our offices for assistance. We are also available after normal business hours.

How. We will talk to you about your case and depending upon your wishes immediately attempt to settle your claim before any court action is considered. If the persons named in the Will refuse to settle we will commence court proceeding for you.

For a free case assessment call 1800 90 20 90

10. The legal fees in the ACT.

Legal costs in family provision cases are at the discretion of the judge however if an order for provision is made for a claimant the claimant’s costs will be paid out of the estate.

If however the claimant’s case is rejected and no order is made in his or her favour he or she may be ordered to pay the costs of the executor defending the proceedings. For that reason alone we recommended you should only seek advice from a specialist lawyer in this field of law.

There is a lot more detail to discuss with you about costs and the variety of costs agreements available to you in these cases including our guaranteed “NO Win No Fees” policy.

For a free case assessment call 1800 90 20 90



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