Will/Estate Dispute and Litigation
No Win, No Fee – Will Dispute Lawyers
Quinn & Scattini Lawyers represent clients in deceased estate litigation (will disputes) on a "no win, no fee" basis in approved cases.
Will/Estate Dispute and Litigation Team
Russell Leneham - Director
Main Types of Estate Disputes, Will Disputes and Estate Litigation
The following are some of the main types of disputes involving wills and deceased estates:
- Challenging the validity of a will.
- Claiming further provision from an estate.
- Challenging a transaction.
- Asking the court to interpret a will.
- Asking the court to approve a will that was not properly signed.
- Asking the court to make a will for a person who is alive and who does not have mental capacity to make a will.
If the deceased person did not have mental capacity ("testamentary capacity") at the time they made their will, the court may declare the will to be invalid. Medical and other evidence will be needed to establish the lack of capacity.
If the deceased person was unduly influenced, or placed under duress, to make their will in a particular way (e.g. to make a gift to a particular person), the court may declare the will to be invalid.
If the will is declared invalid, then the previous will becomes the operative will. If there was no previous will (or if a previous will was also invalid) then the person is deemed to have no will, and in that event the estate will be distributed under the laws of intestacy.
Quinn & Scattini Lawyers have specialist expertise as will dispute lawyers. Q&S’s will contest lawyers can apply to the court on your behalf to challenge the validity of a will, or can act on your behalf to defend such an application to the court.
This is commonly referred to as a "Family Provision" claim. You may hear lawyers refer to this type of claim as an "FPA" (meaning "Family Provision Application") or a "TFM" (meaning "Testator's Family Maintenance").
If the deceased person had a spouse (including de facto), child/ren (including adult child/ren and step-child/ren) or certain other categories of dependant/s, then the law says that the deceased person had a duty to provide for them in his/her will in the manner of a "prudent and caring" or "just and wise" spouse/parent/provider. If the distribution under the will does not adequately provide for their needs for "maintenance and support," then they are entitled to take court action to seek further provision from the estate. The court can then override the will and make an order that they receive further provision from the estate.
If the deceased did not leave a valid will, the same principles apply if the laws of intestacy do not result in adequate provision being made for the maintenance and support of the spouse, child/ren or dependant/s.
What is "adequate provision" depends on the circumstances of each case. There is no mathematical formula or minimum amount that applies to all cases. The amount of provision that the court may award the claimant will depend on many factors, such as:
- the size of the estate,
- the number and type of claims against the estate,
- the financial position of each of the claimants and beneficiaries, and
- whether each of the claimants and beneficiaries had a good relationship with the deceased; and if not, the reasons for the strained relationship.
The following time limitations apply in Queensland:
- within six months after the date of death, the claimant must notify the executor that he/she intends to claim further provision from the estate, and
- within nine months after the date of death, the claimant must commence court action to claim further provision.
These time limits can be extended by the court in exceptional circumstances. However, it is too late to claim further provision if the estate has already been fully distributed.
If you are the executor/administrator of the estate, we can represent you to respond to a claim for further provision. In this type of will dispute, all the legal fees will ordinarily be paid by the estate.
Sometimes a person may be unduly influenced into a transaction, such as giving away property. Improper transactions can in some circumstances be reversed by the court, even after the person has passed away.
If the deceased person was unduly influenced, or placed under duress, to transfer property before they passed away, (e.g. if they transferred real estate as a result of duress or undue influence), the court may declare that transfer to be void. In that event, the property will return to the estate.
Q&S can apply to the court on your behalf to challenge the validity of a transfer of property, or we can act on your behalf to defend such a claim.
Sometimes there is a dispute over the meaning of a will. In these cases, we can apply to a judge of the Supreme Court to rule on the meaning of the will.
Ordinarily a will should be signed by the person who is making the will, and by 2 witnesses. However, in some circumstances the Supreme Court can approve a will that has not been properly signed and witnessed.
Q&S have the specialist expertise to assist you with this type of will dispute.
6. Asking the court to make a will for a person who is alive and who does not have mental capacity to make a will
Sometimes called a “statutory will,” (although that is not really a correct description), the Supreme Court can approve the making of a will for a person who does not have the mental capacity to make a will. This can be important, for example, when a person with substantial assets has lost mental capacity due to age, or where a person with an acquired brain injury has obtained a large sum of money in compensation through a personal injury claim.
Occasionally all interested parties agree on the terms of a will that may be made by the court. But whether there is a dispute or a broad agreement, it requires a Supreme Court judge to make a ruling for a will to be made in these circumstances.
Q&S have the specialist expertise to assist you with this type of will dispute.
Russell Leneham, and the team of lawyers under his supervision, have in recent years conducted the following estate cases that are on the public record in the Supreme Court of Queensland and the Court of Appeal:
- obtained an order for $900,000 plus costs,
- successfully proved a copy of a handwritten will that Quinn & Scattini Lawyers found among hospital records,
- obtained favourable costs orders against the plaintiffs and the estate, and
- in the same case, successfully defended the plaintiffs’ appeal.
Russell and his team conducted all of the above cases (and many others, most of which are successfully settled out of court) on a “no win, no fee” basis.
Making sense of it all
When faced with a will dispute or estate challenge, there are a multitude of factors that must be addressed. There are certain procedures that must be followed, and the terminology is probably new to you. To assist you to overcome the minefield of will/estate disputes and litigation, Q&S’s expert will/estate dispute and litigation lawyers have compiled a glossary of commonly used terms. Access the glossary here.
Wills and Estate Planning
Q&S provide professional planning and expert will and estate planning advice so you can easily address all your estate planning needs in a quick and effective manner. Please visit our dedicated will and estate planning webpage for further information.
Probate and Administration
Q&S have extensive experience assisting clients to obtain probate and letters of administration, and to deal with other issues that revolve around estate administration. Please visit our dedicated probate and administration webpage for further information.
How we can help
Q&S’s expert will dispute lawyers are experts in all types of will and estate litigation. Q&S’s expert lawyers will advise and represent you in all court proceedings, mediations and negotiations regarding deceased estates.
Why choose us?
You will be talking to a real expert, local to you. You will not be treated like a number, but as a real person, and a person going through a difficult and stressful experience. Get expert advice, not just what you want to hear, in a language you can understand, not legal jargon.
Q&S’s expert probate and administration lawyers are available at any of Q&S’s seven office locations.
Still need answers?
Submit an online enquiry below or speak to an expert will/estate dispute and litigation lawyer on 1800 999 529.