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.
Thankyou for your response...I do not have the monetary funds to challenge my Mothers will, therefore I have done nothing...I would like an opinion though as to whether I can request a copy of the will from the State trustees, even though I am no longer a beneficiary, (the will being changed in 09 to leave mums house solely to my brother excluding my sister & I.).. In addition I paid solely for the funeral expenses can I lodge a claim against her estate for this
You don't need the funds, there are plenty of solicitors out there who are no win no fees. You are not listed in the current will, so you don't have any rights to request anything. What I will say , please see a good lawyer who specialises in this area. As I said previously , my sister does not have a cracker, has clocked up a $100,000 bill with her solicitors and will expect the estate to pay. She was left $900K parents bought her house and is still not happy because I am getting $1M. ( I bought my house). She wants $1.6M... All I can say if we have got this far, you are more than entitled to a portion of your parents estate. Please don't let the fact that you don't have the funds to contest the will in any way stop you. There is may ways that it can be funded. Again our action has cost the estate now $200K, so please get started, you only have 6months after probate in Vic....
UPDATE & MORE ADVICE APPRECIATED...the problem is now not with my Brother it seems but the state trustees as executor..
A copy of the will shows that my Mother has in fact signed off to the State trustees (even though she had dementia) giving them authorization (their wording)
& leaving all of her real & personal property to the trustees to pay her expenses, debts & funeral & probate & estate and to hold the balance then remaining to my Brother...So this would mean that they would have the authorization to sell her estate to pay their exuberant administration costs?
Can this be challenged if my Mother did not have the capacity to make changes or understand the legalities of the authorization she ultimately gave & signed to the executor.
Yes, but using the term ‘exuberant’ is reaching. Administering an estate can be time intensive, an a significant portion of the fees are set outlays.
You can challenge your mother’s capacity, but it may be difficult to establish - especially if the state trustee prepared the will as they’re likely to have careful records of testing competency. Also, merely having a diagnosis of dementia may not be sufficient to challenge. Testing capacity can be about the time of instruction and the time of execution. If she was sufficiently competent at those times, that may be sufficient.