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NSW Will Claim to Revoke Mother's Second Will be Successful?

Discussion in 'Wills and Estate Planning Law Forum' started by coolla1, 22 June 2016.

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  1. coolla1

    coolla1 Active Member

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    Hi all,

    I had been caring for my now deceased mother for over 15 years. In that time, she had a Will done in 2001 including only 2 of her 4 children. In 2009, a new will was done including all 4 children with the suspicion they advised her as she was affected with dementia and unable to make her own decisions.

    Her GP had suggested that she be tested for dementia approx 2008 but she refused so it is not confirmed. 2010 diagnosed with late stage dementia and placed in a nursing home by her son. I have lodged a claim to revoke the 2009 Will due to her incapacity and my hardship needs. The medical records have been obtained.

    Question: Does this sound like a type of claim that could be successful?

    The other 3 have had the claim against them, even though 1 is entitled to 50% in the 2001 Will, instead of 25% as per the 2009 Will. They have noted through their solicitor that if my claim is unsuccessful, I pay all fees for both sides from the 25% entitled to me and not from the estate. Is this correct?

    Your help is appreciated
     
  2. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi Coolla1

    What are the respective wealth, health, and future needs of all 4 children?

    Yes, your claim, if prepared correctly, and supported by evidence (which you have indicated), could be successful.

    Please understand that even if the 2009 Will is successfully declared void.. in any event, my understanding is that the other 2 children have a legal right to claim part of the estate.

    The question is, if they were to apply, what % should they obtain?

    Do you have a lawyer?

    If not, why not?

    You are in the middle of litigation in Court, and I highly recommend you urgently seek legal assistance.

    The Court could potentially order that you pay all or part of the legal fees for both sides.

    Please let me know if you would like to engage my legal services.

    Kind regards
     
    coolla1 likes this.
  3. coolla1

    coolla1 Active Member

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    Hello James,

    Thanks for replying. Health all OK, their wealth is through the roof all except for myself. I have a solicitor and a barrister and they had given them an option of 15% for 3 and 40% for myself which they declined. The barrister then submitted to overturn the 2009 will.

    I have been advised they may try to appeal but if the scenario is if they accept 50% for me and they split the rest, can I request no appeal can be actioned on myself after settlement?

    You opinion may help me sleep better.
     
  4. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi coolla1,

    In these situations it is difficult to assist you (with the very small amount of information available in this public forum)...

    You already have a solicitor and barrister who you are presumably paying a sizeable sum of money, who have your entire matter file, and know all of the facts of the case, so they are in the best possible position to advise you.

    The settlement offer process is very complex, and generally has an impact on how legal costs are ordered after the matter is concluded.

    The general principle is that if a settlement offer is made, and it is higher than the result eventually obtained by refusing to accept the offer, and progressing the matter via the Courts.. then the Courts, and the lawyers and clients (on both sides) time and money has been wasted.. from the date that the offer was declined.

    Generally a settlement is made in "full and final settlement" of a dispute - so both parties waive their rights to any further legal action in the matter, on the terms of the settlement deed.

    I need to check - what do you mean by "no appeal after settlement"?

    Do you mean, so appeal after settlement via an agreement between you all, or after the Court orders are made?

    Kind regards,
     
  5. coolla1

    coolla1 Active Member

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    Hi James,

    t's all very complex and thank you for your input.

    The appeal after settlement question relates to the 2001 Will which excludes the other 2 siblings. If this 2001 Will is successful and they are not entitled to any monies, can they appeal the verdict to try and get some money at a later date? Or as you mentioned settlement full and final.

    Thanks again
     

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