Wills & Estates Newsletter – October 2017
Published on October 26, 2017 by Hanaan Indari, Joshua Dale and Rebecca Tidswell
As we approach the festive season for many it is a time to give thanks and for others a time for reflection on the family relationships we have maintained and nurtured over the past year. It is an important time to also reflect on the unexpected and to plan ahead for the unexpected.
In this edition our team looks at:
- the rights of family provision;
- the rights and definition of de facto partners; and
- contesting wills generally.
Family Provision Claims under the Succession Act – An overview
When someone close to you passes away leaving a will, you would assume that it is an indisputable document that sets out how their estate must be distributed, right?
Wrong!
What many people do not know is if that if you feel that you have been unfairly left out of a will or unfairly provided for in a will there is a way to challenge that will through the Courts.
These types of claims are known as ‘family provision’ claims and are becoming increasing popular in the current age of longer life expectancy, divorce, multiple partners, step children and blended families.
Hanaan Indari, Deputy Managing Partner
Victorian Court grants letters of administration to de facto spouse in favour of nephew
The Victorian Supreme Court in June handed down its decision in Jasarevic v Nesovanovic [2017] VSC 267, a matter in which Rada Nesovanovic, would-be domestic partner of the deceased Nail Hamidovic, had applied for revocation of letters of administration previously granted to Nail’s nephew, Jasmin Jasarevic, who would otherwise be the sole beneficiary of Nail’s estate under the laws of intestacy.
Where there’s a Will, there’s a way? Contesting and defending Wills and Estates in New South Wales
Disputes over Wills and estates are becoming more common with an increase of over 50% of cases appearing in court lists over the last 10 years.
Even the estate of a treasured Australian, Bart Cummings, is fair game; there are currently two proceedings before the court challenging the division of the Cummings estate worth over an estimated $60M, one by his daughter and the other by his son.
Rebecca Tidswell, Senior Associate
Do you need help to contest or defend a Will and estate? Quick Quiz:
Time
An application must be made within 12 months of the date of death (extending the time can be difficult and requires a court order).
Can I apply?
Those eligible to apply include wives and husbands, de facto partners, children, former wives and husbands, dependents living in the same household, dependent grandchildren, persons in a close personal relationship.
Can I defend?
The executor of the estate can defend a claim (or a beneficiary depending on the circumstances of the Will).
What happens?
The court will take into account a long list of factors when determining whether the applicant has received adequate provision from the estate. The court’s objective is to ensure that an eligible person’s maintenance, education or advancement in life is properly provided for.
Cost
Usually, the costs of a successful application or defence will be paid out of the estate.
Court
Mediation is compulsory before any hearing, often meaning that cases resolve without the need for witnesses to appear in court.
