Contested Wills and Estates

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I have been left out of a Will when I thought I should be included. What advice would you offer? What action can I take?

If you have not been included in a person’s Will, you may still be able to make a claim against that person’s estate for a provision to be made for you.

Whether you are entitled to inherit from someone’s estate depends on your relationship with the deceased person. In South Australia, you are generally entitled to claim against a person’s estate if you are:

•   The spouse of the deceased person;

•   a person who has been divorced from the deceased person;

•   the domestic partner of the deceased person;

•   a child of the deceased person;

•   a child of a spouse or domestic partner of the deceased person;

•   a grandchild of the deceased person;

•   a parent of the deceased person;

•   a brother or sister of the deceased person.

There may be other circumstances for a claim. Talk with one of our solicitors.

To make a claim against an estate, generally, you will have six months from the date of grant of probate of the deceased’s persons Will or grant of letters of administration. Whether you will be successful will depend on whether the Court determines that adequate provision has been made for your maintenance, education or advancement, or you have a moral claim on the estate.

It is important to talk to a solicitor about your entitlements and whether you are likely to be successful in making a claim. It is also very important to act quickly. Many claims are lost by delay.

My investment property is currently tenanted. I need confirmation re when the residential tenancy agreement can be terminated. The lease is for a fixed term of 12 months but the tenant has only been living there for 7 months.

If you intend to see out the duration of the fixed term then you must give notice of termination of the agreement at least 28 days prior to the end of the tenancy. You do not need to provide a reason for termination.

If the tenant breaches the tenancy agreement then it is likely you will have grounds for terminating the tenancy. Examples of a breach of tenancy include the tenant not paying rent or damaging the property. Depending on the type of breach, will determine the steps needed to be taken to terminate the tenancy. Some breaches will involve you providing the tenant with a notice requiring them to remedy the breach within a certain time.

It is important you obtain legal advice to ensure you comply with the correct notice period as different breaches may have different notice requirements. Other breaches may require you to apply to the South Australian Civil and Administrative Tribunal (SACAT) for an ordering terminating the tenancy.

If the tenant has not breached a term of the tenancy agreement then generally the agreement cannot be terminated by the landlord. However, there are exceptions to this.

If you terminate the agreement but the tenant does not leave as required then you will need to apply to SACAT for an order of vacant possession of the premises. You cannot evict the tenant.

If the property is destroyed or rendered uninhabitable or ceases to be lawfully usable for residential purposes then you can terminate the agreement immediately by giving the tenant written notice. An example of when this might occur is after a natural disaster such as a bushfire.

A friend is considering making a Will that leaves all of her estate to her youngest child, and nothing to her two older children. She is worried that her older children might challenge the will. Is this possible?

The older children may have grounds to challenge their mother’s will. When a person dies leaving a Will, there are processes that must be followed prior to the Will being carried out and the person’s estate being distributed.

Probate must be applied for and granted by the Supreme Court. Probate is the process of proving and registering the Will with the Supreme Court. Wills can be contested on two main grounds:

1. That the Will is not valid, due to the testator (the person making the Will) lacking testamentary capacity at the time the Will was made.

There are various grounds for lacking testamentary capacity and that is one of the reasons for obtaining advice from a suitably experienced lawyer.

2. That the Will does not make adequate provision for a person’s proper maintenance, education or advancement in life, provided the person is either the spouse (including de factor spouse), parent, child or grandchild of the deceased.

Any claim against the estate must be made within six months of probate being granted by the Supreme Court.

For people thinking of making a Will or challenging a Will, it is important to receive accurate and independent legal advice. Scammell & Co. have a team of expert legal staff experienced in Wills and Estates. Also, the first 30 minutes of your appointment in these matters is free. Bring along all the detail you can to enable more progress at the first meeting.

My father disowned me 20 years ago. He died recently and left me nothing in his Will, in which he wrongly called me dishonest. I do not want public records labelling me dishonest. What are my rights?

Supreme Court has the power to order the omission of words from a Will so that court processes are protected from abuse.

Rule 67 of the Probate Rules permits an application for an order for the omission, from a Will, of words which are offensive or libellous.

However, it does not necessarily follow that the Court will omit words, even if they are offensive and libellous and even if those words have no dispossessing effect.

If the offending words have a testamentary purpose (that is, those words are used to explain why no provision was made for persons such as yourself) the Court may decide not to omit the offensive words and instead regard them as an explanation why no provision was made, instead of regarding the offending words as a vehicle for libel.

Should the Court decline to omit the offending words from your father’s Will, your main option might be to contest the Will on the grounds that as his child he had an obligation to provide for your maintenance, education or advancement in life. Recent Supreme Court decisions tend to suggest that the Court is unlikely to omit offensive or libellous words if those words are used to explain why no provision was made for you. Contesting your father’s Will might be a better option for you.

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