Estate Litigation

Over the past 50 years, Snedden Hall & Gallop has acquired specialist knowledge and expertise in all areas of estate litigation including contested wills and family provision claims.

It is possible for a Will to be challenged if there is sufficient evidence to show that, at the time of making his or her Will, the testator did not have the requisite mental capacity to understand the nature and effect of making the Will. For example, if it can be proved that a person was suffering from advanced dementia at the time he or she made a Will and did not have a full or proper understanding of what they were doing then a challenge may be brought. Likewise, a Will may be challenged if there is sufficient evidence of undue influence or pressure having been brought to bear on a testator in making his or her Will in a particular fashion. For example, if it can be proved that a testator was threatened or intimidated into making a gift to a certain person in the Will then that gift may be challenged.

A family provision claim may be brought against a deceased estate if an eligible person was either left out of a Will entirely, or if an eligible person was not adequately provided for in a Will. For example, if a dependant child of a deceased person was left out of a Will entirely and received nothing from the estate then a family provision claim may be made. There are, of course, many factors that are relevant and need to be taken into consideration in any family provision claim, including the character and conduct of the claimant.

Snedden Hall & Gallop can assist you in relation to your estate litigation matter or enquiry. Our lawyers are experienced in bringing claims on behalf of people who are challenging Wills or making family provision claims as well as acting on behalf of Executors and Administrators who are defending claims that are being made to challenge a Will or defending family provision claims that are being made against an Estate. We have built excellent relationships with some of the leading barristers in this area and we are well-equipped to assist you in relation to this specialised area of the law.

• Contested wills
  

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  The law requires a person making a Will to be of sound of mind and mentally capable of understanding the nature and effect of making a Will. If it can be established that, at the time of making his or her Will, the deceased person lacked the mental capacity to do so, then the Will may be overturned. Similarly, if it can be established that the deceased person was under undue pressure to make his or her Will in a particular fashion, then this may also be grounds for setting aside the Will. The law in this area is complex and each case needs to be considered individually.
  
  
• Family provision claims
  

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  Certain people are eligible to challenge a Will by making a family provision claim, depending upon their relationship with the deceased person. The law in this area is complex and varies between each State and Territory.
  
  In the ACT, if you wish to challenge a Will because you were either left out of the Will entirely or because you consider you were not adequately provided for in the Will, you may do so under the provisions of the Family Provision Act 1969. You may be eligible to make a challenge if you are a spouse, domestic partner (including de facto couples and same sex couples) or a child of the deceased. Parents, stepchildren and grandchildren of a deceased person may also be entitled to make an application provided they meet certain criteria. A similar set of rules applies in New South Wales.
  
  The Family Provision Act 1969 attempts to achieve a balance between a person’s right to decide how they want to distribute their estate on their death and ensuring that persons who are properly dependant on someone who later dies are adequately provided for. The size of the estate is a relevant factor for the Court to consider, as are the interests of other beneficiaries under the Will and other people who have competing claims against the estate.
  
  In the ACT, a family provision claim must be made within 12 months of the date that the grant of Probate or grant of Letters of Administration was issued.
  
  If you are considering a family provision claim, we will need full details of your relationship with the deceased person, including any details of financial dependency and assistance provided to you by the deceased person. We will also need full details of your financial means including your assets and your income and full details of your financial needs.
  
  If you an Executor or Administrator who is defending a family provision claim being made against the deceased estate, we will need: the will, full details of the estate assets and liabilities, full details of all beneficiaries under the will and any other potential claimants, as well as full details of the family provision claim being made.
  
  One of Snedden Hall & Gallop’s experienced estate litigation solicitors will be able to advise you and assist you once specific details are known.
  
  
• Probate and Letters of Administration
  

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  When someone dies with a legally valid will, it is often necessary for the executor of the will to obtain a grant of probate from the Supreme Court so the executor can deal with the assets and liabilities of the estate. A Grant of Probate is the legal authority that the will is valid and it authorises the executor to administer the estate in accordance with the terms of the will. Administration of the estate may include realising assets or transferring assets to beneficiaries (e.g. property, shares, bank accounts, etcetera), attending to payment of debts or estate liabilities, paying bequests and making distributions to the beneficiaries.
  
  When a person dies without leaving a valid will (an intestate), it is often necessary for an administrator to be appointed to carry out the administration of the estate. A Grant of Letters of Administration is a document granted by the Supreme Court which authorises the administrator to administer the estate in accordance with the laws of intestacy. Where there is no legally valid will, the administrator must distribute the deceased’s assets in accordance with the laws of intestacy, which prescribe how the estate assets must be distributed.
  
  If you require assistance in your capacity as executor or administrator in making an application to the Supreme Court for a Grant of Probate or an application for a Grant of Letters of Administration, or if you require assistance with any aspect of the administration of an estate, we can help you.
  
  Executors and administrators are imposed with many legal responsibilities and obligations and we recommend you seek legal advice if you find yourself handling a deceased estate. Snedden Hall & Gallop’s experienced team for Wills and Estate Planning and Estate Litigation will work with you to assist you through what can be a complex process and to assist you in properly carrying out your legal responsibilities and obligations.
  
  

• What happens to a person's assets after death?
  

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  A person's assets will normally be distributed in accordance with his/her Will. If a person dies without leaving a Will, the law sets out criteria to determine who will inherit from the deceased person. If no eligible persons fall within the criteria, then it is possible a person's estate may be left to the government.
  
  
• What is Probate?
  

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  A Grant of Probate is a document, issued by the Supreme Court, that establishes that a person's Will is in order and that the executor named in that Will has the power to look after the deceased person's affairs. Before Probate can be obtained, it is necessary to advertise your intention to apply for the Grant of Probate(normally in a local newspaper) to give potential creditors of the deceased person an opportunity to come forward and make a claim
  
  
• What are Letters of Administration?
  

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  When a person dies intestate (without leaving a Will), it is necessary for an administrator to be appointed (the administrator performs a similar function to the executor of a deceased person's Will). Letters of Administration is the document granted by the Supreme Court to provide the administrator with the authority to look after the deceased's affairs. The deceased's assets would be distributed in accordance with the laws that specifically deal with a person dying without leaving a will (i.e. the laws of intestacy).
  
  
• What does it cost to obtain Probate or Letters of Administration?
  

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  In New South Wales, the legal costs of obtaining Probate or Letters of Administration are determined by a scale prescribed by the law. The scale is based upon the value of the estate. For applications for Probate or applications for Letters of Administration in the ACT, we charge legal costs based on a scale which is based upon the value of the estate. We will be happy to provide you with an estimate of the legal costs and disbursement expenses if you contact us. In most cases, we will enter into a Value Pricing Costs agreement with you, whereby we a fixed fee will be agreed for obtaining the grant of Probate or grant of Letters of Administration.
  
  
• If I wish to challenge (contest) a Will, what information is required?
  

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  You will need full details of your relationship with the deceased person, including any details of financial dependency and assistance provided to you by the deceased person.
  
  
• What is the "administration" of an estate?
  

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  Once Probate or Letters of Administration have been obtained, your lawyer can begin to administer the estate. This includes closing any bank accounts, selling shares and properties owned by the deceased, and finalising any taxation issues. This work would generally be charged at an hourly rate, as set out in a fees agreement and agreed with you at the time your lawyer took your initial instructions.
  
  If you require Snedden Hall & Gallop’s assistance to administer an estate, you would need to provide your lawyer with the following details:
  
  

  1. the whereabouts of the deceased’s original Will (the original Will will be required, particularly if a Grant of Probate needs to be obtained);
  2. a copy of the Will if the original is not provided;
  3. the original death certificate;
  4. full details of all of the deceased person's assets, including real estate, shares, investments, bank accounts, any interests in companies or trusts;
  5. The name of the deceased person's accountant, together with a recent history of tax returns;
  6. full details of beneficiaries, including addresses;
  7. details of any possible claims upon the estate, including creditors and potential disgruntled beneficiaries.

  
  

• What happens if I feel I have been left out of a Will?
  

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  Certain people are eligible to challenge a Will, depending upon their relationship with the deceased person. The law in this area is complex and varies between each state and territory.
  
  In the ACT, if you wish to challenge a Will, you may do so under the provisions of the Family Provision Act. You may be eligible to make a challenge if you are a spouse, domestic partner or a child of the deceased. Parents, stepchildren and grandchildren of a deceased person may also be entitled to make an application provided they meet certain criteria.
  
  A similar set of rules applies in New South Wales, but the law is too complex to summarise briefly. One of Snedden Hall & Gallop’s experienced estate lawyers would be able to advise you once specific details were known.
  
  

• Are there any other ways I can challenge (contest) a Will?
  

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  The law requires a person making a Will to be sound of mind and mentally capable to do so. If it can be established that, at the time of making his or her Will, the deceased person lacked the mental capacity to do so, then the Will may be overturned. In addition, if it can be established that the deceased person was under pressure to make his or her Will in a particular fashion, then this may also be grounds for setting aside the Will. Once again, the law in this area is complex and each case needs to be considered individually.