We have experienced professionals in our offices to help you in the following areas of Estate Litigation:-

Family Provision Act Claims | Incapacity | Undue Influence & Duress | Contract to Make a Will

(a) Family Provision Act Claims

Often, for a variety of reasons a person will fail to make proper provision in a Will for somebody in respect of whom the deceased person had a moral obligation to provide for. Those persons are normally current or ex spouses or defacto spouses and children or step children. Sometimes grand children may also have a claim as well as other persons who have, at some time, been at least partially financially dependant on the deceased and a member of the deceased's household.

Sometimes the failure to make a Will leads to a person missing out on provision. Frequently, also, the falling out between family members can result in a wrong decision being made by a person making a Will. Sometimes a person making a Will simply doesn't take into account his moral obligations to another person.

If you think you may have a claim, we are happy to discuss your claim on an obligation free basis and at no cost for the first interview.

Subject to your financial circumstances, we are normally able to await a successful completion until payment of our fees, the majority of which will normally be paid out of the Estate in any event. In the event that we advise you that, in our opinion, you have good prospects of success we will normally enter into an agreement to the effect that you do not have to pay our fees unless the matter is completed successfully. Arrangements in relation to fees and disbursements will be discussed with you at the outset and a written agreement will be entered into to ensure that everybody is aware of their respective obligations and entitlements. If you are an Executor defending a Family Provision Act claim then, provided you act reasonably, all of your costs will be paid out of the Estate.

If you think you have a claim or if you wish to defend a claim you should arrange an appointment to see Mark Ford, the partner of this firm who conducts Estate Litigation.

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(b) Incapacity

A Will can be challenged in the event that, at the time it was made, the person making the Will requires legal capacity. In effect, this means that the person making the Will, at the time, did not understand the nature and effect of a Will and/or the nature and effect of the contents of the Will that they were making, or that they were simply unable to make a rational decision as to the beneficiaries and gifts nominated in the Will.

This most frequently occurs in elderly people and people who are in frail health or suffering from some illness which affects their mind.

In almost all cases, medical evidence as to the person's lack of capacity will be required to establish the incapacity at the time the Will was made.

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(c) Undue Influence & Duress

Sometimes duress may be exerted on a person making a Will to make it in a certain way. The duress can be physical, psychological or in the form of a threat. Actual evidence of the duress is required in some form or another.

Undue influence can arise in circumstances where a relationship exists between a person making the Will and another person such that the other person was in the position to exert some power over the person making the Will to make in a certain way. Most often the person exerting the undue influence is likely to be a family member, however, it can also be somebody such as a Solicitor, Accountant or Cleric.

The Supreme Court can declare a Will to be invalid in cases where it was made under duress or undue influence.

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(d) Contract to Make a Will

It is free for people (normally married or defacto couples) to make a binding Contract to make their Wills in certain way. Usually both people make a Will in accordance with the Contract at or about the time the Contract is entered into.

Sometimes, however, a person will make a later Will which is inconsistent with the Contract and without telling the other Contracting party.

Also, after one party dies, the other party may make a Will which is inconsistent with the Contract.

A properly made Contract to make a Will is legally enforceable and persons affected by a breach of the Contract may be entitled to make a claim for damages and/or to other relief from the Court.

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Family Provision Act Claims | Incapacity | Undue Influence & Duress | Contract to Make a Will