Challenging Wills – Claims Estate Claims

Lewis & McNamara Solicitors can assist you if you have been left out of a will, or not properly provided for in a will.

Who has an entitlement to an estate claim?

Anyone who is a spouse, child, or dependent upon a deceased may have a right to make a claim against an estate. The definition of spouse includes de facto spouses and the definition of child includes stepchildren.

What do I need to prove?

In order to make a successful claim for payment from an estate which you have been left out of, you must show that that you have not been properly provided for and that you have “need”.

What amounts to need is different in every case. It will depend on a number of factors including: –

  1. the assets of the estate;
  2. your income, your assets and your health;
  3. the income, assets and health of other possible beneficiaries of the estate;
  4. any reasons why the deceased did not properly provide for you in their will.

This is not exhaustive list but gives some guidance as to how an estate claim is decided.

What is the process for making a claim?

An estate claim begins with notification to the estate that you intended to make a claim. Notification of your intention must be served within six months of the date of death. Action must then be taken by lodging court proceedings within nine months. Once an action is brought, a process of conciliation and mediation between the parties must be undertaken and if the matter cannot be resolved, the matter will be tried in the District or Supreme Court depending on the size of the claim.

What costs are involved?

Like any legal matter, estate claims can become expensive. Solicitors fees, court filing fees and mediation fees can reach tens of thousands of dollars. Lewis & McNamara Solicitors understand that many people do not have access to these kinds of funds and we offer to assist by acting on a no-win-no-fee basis in appropriate cases.

How can I find out more?

If you think that you may have a potential claim against an estate please do not hesitate to contact our office by e-mail at office@lmlaw.com.au or by phone on (07) 4128 1177.

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