VIC Opinions on Contest a Will?

Discussion in 'Wills and Estate Planning Law Forum' started by maxmillion, 1 May 2019.

  1. maxmillion

    maxmillion Member

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    My elderly mother has recently passed away.

    My father died years ago and an older sibling, who lived with them, became my mother's carer, as she had dementia...although died from cancer.

    Both my mother and father had the same will originally, leaving the deceased estate to each other, and if / when both were deceased, the estate divided between 3 children.

    Several years before she died, a grandson convinced mum to change her will and leave the entire estate to him. When my older sibling found out, he then convinced mum to change her will yet again, leaving the entire estate to him.

    Now previously I would never have considered challenging a will. But I believe my mother now potentially coerced into changing her will on both occasions when she was vulnerable and did not have the functional capacity to do so.

    My older sibling is single, does not own a home and is on a pension. My sister and I, married, own our own homes, but also on pensions. My older sibling had cleared my mother's bank account and finances long ago and therefore I had no alternative but to pay for mum's funeral expenses on credit as I had organised it.

    My older sibling has said that he will sell the estate as he does not have the capacity to maintain it, in all probability would look for a small flat. Yet he would be disadvantaged financially if the estate was divided x 3, simply as his options would be limited, the estates value less than half million, fewer costs, etc.

    I have not sighted the will but assume it will go to probate.

    Can anyone tell me what my legal rights are regarding this absolute travesty? Is it worth contesting a will if it was to create such contention?
     
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  2. Anthony23

    Anthony23 Active Member

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    Hi, I'm from Victoria and will give you my thoughts on what it is worth.. Firstly try and resolve with mediation (will be forced on you anyway) without going to court, all I can say is I'm defending my parents will as an executor and it has cost over $200K from the estate and 3 years of my life in the Supreme Court. Essentially from what I'm going through a will is not worth the paper it is written on, and courts look dimly on people not being left anything in a will. I would seek advice from a good solicitor, and yes as I found out the figures I was quoted several years ago are correct, if it goes to court expect figures north of $150K.
     
  3. Alert

    Alert Well-Known Member

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    Sorry to hear of your loss.

    You said you have not sighted the Will.
    Do you know if the Will is a copy or the original?
    The Will can only be accepted if it is the original, do you know if your mother’s solicitor has this, if the original can’t be provided the Judge will make different orders.

    You mentioned your mother’s capabilities to function were not all that great?
    When you say this, if your mother had dimentia this is unacceptable of your brother to have your mother change and sign the Will.

    If you are able to prove your mother was vulnerable and not mentally stable when your brother had the Will changed this ‘Will’ can be revoked with Judges orders. You will need medical evidence to prove this about your mother.

    I strongly suggest you see a solicitor who works in the field, Wills and Probates.

    Are you able to get a caveat on your mother’s property, that way your brother is unable to sell the property.

    Good luck
     
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  4. Alert

    Alert Well-Known Member

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    Sorry Maximilian, you did say your mother had dementia.
    I feel the Will won’t stand up, you need to get onto this ASAP
     
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  5. Emmafal

    Emmafal Active Member

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    Hi everyone, thank you for having me in this forum. I want to know normally do people list their assets that they may hold in the future or they currently own. I am in the middle of property negotiations and my partner had told me in the past she owns real estate overseas and I have that stated on her will as evidence, but now she is making the claim that she does not own any real estate and it was included in her assets because apparently we were discussing about having a property portfolio and the will will be read by someone in the future. Thank you for any information.
     
  6. Rob Legat - SBPL

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    There are two types of asset reference in a will:
    1. What you currently own, which you describe in precise detail to make it clear what it is (e.g. "my residence at [address], being lot X on registered plan Y, comprising certificate of title Z". I would suggest only things the testator is likely to hang on to throughout their life should be referred to in this way; and
    2. What you own at the time of your death, which is not referred to in specific detail but in enough that you know what they're talking about (e.g. "my primary residence which I own at the date of my death").

    You don't mix the two.
     
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  7. Emmafal

    Emmafal Active Member

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    Thank you Rob. She had written the assets as (real estate, investments, bank account, insurances, superannuation). So none of the assets stated were specific. I have documents showing ownership of all the assets except the real estate. But at that time she had told me verbally what exactly the real estate was. So how do you suggest I convince the judge that she actually meant the real estate as an asset she owned at that time of writing the will. By being specific in what she told me what it was?
     
    #7 Emmafal, 9 July 2019
    Last edited: 9 July 2019
  8. Rob Legat - SBPL

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    The will is not likely to be sufficient evidence of ownership. On the face of the will she could be referring to category 2 in my previous post. It doesn't mean she owns any at the time of making the will.
     
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  9. Emmafal

    Emmafal Active Member

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    Thank you Rob. So if I can exactly the state the address of the real estate. Would that help as counter argument?
     
  10. Rob Legat - SBPL

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    That doesn't prove anything. If you want to prove ownership, organise a search of the property registry in the relevant jurisdiction at the point in time you want to prove ownership.
     
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