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Contesting a Will - Chance of Success?

Discussion in 'Wills and Estate Planning Law Forum' started by Angelou, 10 September 2014.

  1. Angelou

    Angelou Member

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    I am one of four remaining siblings. Two of my siblings live in supported care, sister has multiple health issues and is wheelchair bound. Younger brother has Down's syndrome. Two brothers died many years ago, one had a son who is now 30.

    I have recently been told I am not included in my mother's will. We have an amicable relationship except where my older brother is concerned, we disagreed on an ethical issue decades ago and have spoken rarely since. My brother is the first born, dominant and manipulative. I as second born and first female and as such have worked hard to carry out that role responsibly as a child and as an adult, continuing after I had my family, and helping to care for my father during a long illness and subsequent death. Then focusing on my mother.

    When each of my brothers died, we all grieved terribly. For years after my mother was depressed, as you would understand, and I was often the fallout guy for her outbursts of anger and unresolved grief. I tolerated these regular, damaging episodes because of what she was enduring, although she refused professional help. I, also was grieving and struggling. And attempting to deal with my marital problems. I lived close to my mother.

    My older brother lived few hours away. It seemed to develop into a scenario of good child/bad child, I was of course the bad child. Even though I was the one doing many things for her and seeing her and my siblings often. It was during one of those periods where she had been particularly abusive towards myself and one of my daughters and I had temporarily pulled back for self preservation, that I've been told the new will was made and I was excluded. This was 12 years ago. She won't consent to me seeing the will. I assumed we would be co-executors. This would ensure a balanced perspective. My brother is sole executor of the will.

    I am concerned. I need to advocate for my siblings. Should their living situations change I am unsure as to what would happen. Also my nephew, who was originally left a substantial inheritance but contact was lost and only recently been renewed. My mother told me my brother told her not to worry about this inheritance being given so I am assuming he had that changed in the will of 12 years ago. Secondly, I feel I should be included.

    Morally I feel I have done the best that I could. When I approached my mother about my feelings, re, that my brother and I should be co-executors (with my daughter as silent third party), initially she avidly rebuked me. Then appeared to have a change of heart and said yes that is the right and fair thing to do. A week later she abused me for raising the topic, especially in front of my daughter and yelled if I wanted anything changed I would have to convince my brother and that if he agreed, she would agree, as it was his will!

    By now you may have an idea of situation I find myself in. He will not include me in will.

    What chance of success would I have contesting the will on behalf of my siblings and also myself? What steps do I need to take in contesting a will? Any other advice? Thank you for your time in considering my dilemma.
     
  2. Sophea

    Sophea Well-Known Member

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    Dear Angelou,

    Being executor will not change your entitlement or that of the other beneficiaries. The executor has a duty of care toward the beneficiaries of the will and it is his or her responsibility to ensure that the deceased's wishes are carried out. If the executor does not act in the best interests of the beneficiaries he or she may be liable in damages to beneficiaries for negligence for example, in respect of any avoidable delay which results in loss to the beneficiaries either in relation to lost investment income or a lost opportunity to invest. In Australia, unless there is specific provision in the will and all beneficiaries agree, the executor is not remunerated.

    As to your inclusion as a beneficiary under the will, there is no application that you can make before your mother passes to challenge your non inclusion in the will. However a Family Provision Application may be made by children or other dependants of the deceased if they believe they have been inadequately provided for. Any such application should be made a soon as possible after the deceased passes, before the estate is distributed in accordance with the will.

    You can read about family provision applications here:
    http://www.turnerfreemannsw.com/est...probate/family-provision-claims/#.VA-XCmRdU70
     
  3. Angelou

    Angelou Member

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    Thank you. In your opinion would contesting the will be successful?
     
  4. Sophea

    Sophea Well-Known Member

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    Dear Angelou,

    There is simply no way that based on the information provided above that anyone could determine your prospects on a family provision application. Advising on this matter would require a detailed review of all the circumstances and evidence alongside the available case law. It is simply too complex to make assumptions about. This is something that you will need legal advice on.

    All the best.
     
  5. Angelou

    Angelou Member

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    I will seek further advise. Thank you very much for your time and consideration
     
  6. Sarah J

    Sarah J Well-Known Member

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    Hi Angelou,

    Your brother should not be telling your mother who to include in the will. If this is the case, record it, and you can use this to contest the will on the basis of "testamentary capacity". Essentially, a will must be made in the absolute discretion and wishes of the will-maker ("testator"). Reasonable amounts of pressure, feelings of guilt/gratitude/sympathy toward certain members that may taint this "free discretion" is allowed. However, the testator cannot be at the mercy of someone else. Further, if the testator makes a gift or denies someone a gift on the basis of false information, either believed by the testator or told to the testator by someone else, then this gift or denial of gift can be challenged and will most likely be void.

    Having said that, you will need to show proof of this. Your word and allegations will not be enough if you do decide to challenge it.

    Hence, if your mother says "speak to your brother, he is in charge of the will" or "he decides" then record this, try and have this in writing such as via email, if this is not possible, keep a detailed "diary" of such conversations, contents of the conversations, dates, times, people present, who said what and to whom.
     

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