Estate Disputes Solicitors on the Gold Coast
Grief. Stress. Sadness. Anger. Anxiety. Resentment.
All of these feelings often spill over after a loved one has passed away.
When coupled with complicated family relationships, this is a potentially volatile mix that can easily result in estate disputes. If you’re embroiled in this type of disagreement, you need a lawyer who is not only skilled, but also compassionate to help you fight for what is rightfully yours. At OMB Solicitors, our Wills & Estates team is fully equipped to assess your situation and act accordingly.
Contesting a will based on lack of capacity
To be lawful, a will must be made by someone who is physically capable of doing so and fully aware of what he or she is doing at the time. If you think your loved one was not capable of acting independently or completely cognizant of his or her actions, our lawyers will review the circumstances to see if you can contest the will based on incapacity.
If we find that you have a viable case and you want to proceed, a Court will use legal tests and standards to determine whether the deceased had testamentary capacity at the time he or she made his or her last will. The Court may also review additional evidence, such as the deceased’s medical records.
Contesting a will based on undue influence
A valid will is one that is made freely. This means that no one, including friends, relatives, financial or legal professionals, can trick, bully, force, coerce or otherwise influence a person who is making their will to include certain provisions or change existing provisions.
If you suspect that the deceased created their will while under undue influence, you may be able to contest it. To save time and money, however, it is important to consult with a member of our Wills & Estates team to learn if you have a worthwhile case before pursuing legal action.
Courts presiding in such matters do have the authority to invalidate the will, but only when there is sufficient proof of unnecessary influence.
Contesting a will or making a claim against an estate as an estranged child
As a child who has had a temporary or permanent falling out with your mother or father, the death of that parent may be especially gut wrenching. Even if there is no emotional attachment and your exclusion from the will isn’t a shock, you may still have some questions. From a practical standpoint, you may want to know if you can make a claim against the estate or contest the will.
The answer to this question is, “yes.” This is because your relationship with the parent who passed away is only one issue taken into account by the Court. To reach its decision, the Court will also consider your financial circumstances and weigh them against those of your other siblings.
Contesting a will after probate has been granted
Another concern frequently raised by clients in estate disputes is whether or not they can contest the will after probate has been granted. The answer to this question is also, “yes,” as long as you notify the executor or personal representative of your intentions within the six-month time limit prescribed by law. Once you make your intentions known, the executor or personal representative is personally liable for any allocations made by the Estate.
Taking action against an executor
The executor of a will wields certain powers, but he or she also has certain legal obligations. The chief among these is to avoid any conflicts of interest and other improper acts.
If you are displeased with an executor or have any reason to believe that he or she has engaged in wrongful conduct, a member of our Wills & Estates team can evaluate the situation and provide the appropriate guidance. Depending on the circumstances, you may have to apply for court removal of the executor.
Other methods for resolution
Although estate disputes can be especially nasty because of the emotions and relationships involved, they are often resolved before they go to trial. In fact, most of these cases are settled during pre-trial mediation. Court orders are then written to affirm the agreement reached through the mediation process. For more information about all of the methods for estate dispute resolution.