Andrew Mackenzie of Roe Mackenzie Lawyers specialises in acting for both executors and administrators of estates, beneficiaries and family provision claimants.  We can assist you with all matters surrounding disputed estates or wills including:-

  • Acting for a claimant on a family provision claim
  • Defending an estate from a family provision claim
  • Acting on disputes as to the construction of a will
  • Acting on disputes as to the capacity of the will maker at the date of making the will

The Contested Wills Frequently Asked Questions that follow provide answers to common issues with wills and estates disputes. For further advice please contact Andrew Mackenzie for an obligation free telephone discussion.

Contested Wills FAQ

I have been left out of a will or did not get what I thought I was going to get. Am I eligible to make a claim?

To be eligible to make a claim under the Succession Act 2006 you must be an eligible person as that term is defined by Section 57 of the Act.  Eligible persons include the wife or husband of the deceased, the de-facto partner of a deceased, a child of the deceased, a former wife or husband of the deceased and a person who was living with the deceased in a close personal relationship at the time of the deceased’s death. In certain circumstances a grandchild of the deceased may also be an eligible person.

How long do I have to make an application for family provision?

If the deceased person died on or after 1 March 2009 you should make a family provision application no later than 12 months from the date of death of the deceased person. You should seek the advice of a lawyer well before this time. The time may be extended in certain circumstances.

I am eligible to make a claim for family provision. What do I need to establish to successfully make a claim?

A family provision order may only be made where the court is satisfied that in addition to you being an eligible person:-

  • That adequate provision for the proper maintenance, education or advancement in life of you has not been made by the deceased person; and
  • If the court considers adequate provision has not been made are there sufficient funds in the estate or notional estate to provide for you after considering the needs of other beneficiaries named in the will and other family provision claimants. 

What is the difference between the actual estate and notional estate of a deceased person?

A deceased person’s actual estate will be those assets which are held by the deceased in their own name at the date of their death. Notional estate includes assets which may not be held solely in the deceased’s name at the date of their death. When a claimant makes a claim for family provision the court may consider not only the actual estate of the deceased but also notional estate. Examples of possible notional estate include superannuation funds, property where the ownership of the property has changed from the deceased to another person without the transaction being conducted at arm’s length and trusts where the deceased may have controlled the assets held within the trust but they did not form part of his/her personal assets at the date of death.

I am the executor of an estate. I have located the will but a beneficiary disputes its meaning. What can I do?

You should seek legal advice. Generally if there is a dispute as to the interpretation of a provision or provisions in a will the disputing parties should try and reach an agreement.  In the event an agreement cannot be reached an executor or a person with an interest in determining the interpretation of the will could bring an application before the court to have the court make a decision as to what the will in fact means.

What happens if someone has dementia when they change their will?

For a will to be valid the deceased must have had capacity to make the will at the time they did so. Just because they may have had dementia does not necessarily mean they did not have capacity. The law relating to capacity is very complex, however the fundamental issues are whether the deceased was able at the time of making their will to:-

  • Understand the facts involved in the decision making and the main choices;
  • Weigh up the consequences of those choices and understand how the consequences affect them; and
  • Communicate their decision

If you believe a person did not have capacity at the time they made their last will and this affects you in some way you should seek legal advice about whether it may be possible to set the will aside.

I am a beneficiary and I am not happy with how the estate is being administered by the executor. The executor has been granted probate. What can I do?

You should first seek legal advice and perhaps employ a lawyer to act on your behalf to correspond with the executor or their solicitor to try and have the estate administered correctly. The court does have the power to remove executors from office and to appoint alternative executors to administer the estate. An executor may be removed upon a proper case for doing so being established. Reasons why the executor might be removed could include a lack of mental capacity to fulfil the function of executor, ill health, or other matters which establish that an executor is not a fit and proper person to carry out the duties he or she had agreed to perform.