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Will contest

Printed From: AussieLegal
Category: Wills, Probate, Letters of Administration
Forum Name: Wills, Power of Attorney, Probate, Letters of Administration
Forum Discription:
Printed Date: 27/May/2019 at 01:51

Topic: Will contest
Posted By: angies01
Subject: Will contest
Date Posted: 09/October/2016 at 18:16
Can anyone answer this query?Probate has been done.
A family member (married female 69yrs old)is contesting a parents will, their sibling(married male 62 yrs old) is trustee and executor.
They have been asked by executors' lawyer to provide proof of claims(they are claiming they have not been adequately provided for) to contest the will.
A letter has arrived 2 months after the information was requested with no proof only her word of the debts and operations and health and how hard done by they are.It is 10 pages long(done by their lawyer)and it is full of such lies(we can prove this)and is totally irrelevant to her grounds to contest the will.
The claimant is living overseas and rings her lawyer over here.The executor lives here and his lawyer is also here.If she does not come up with documented evidence to support her contest claims(she will be again requested to supply them)What will happen?
She has stated that she will take it to supreme court(as she believes the estate will pay costs)Can a request be made to supply proof of last 3 years of income(as she was not in contact with parents for all that time)tax statements,bills,expenses etc.(she has made claims they have no money,no savings,no work ,on pension and more outgoing than income)

Posted By: angies01
Date Posted: 06/November/2016 at 18:15
Has anyone got any answers please or even experience with will contests?

Posted By: citizen-joe
Date Posted: 07/November/2016 at 02:38
If their claim is full of lies, you need to file a response to their claim refuting each of those lies, you need to post factual information as opposed to opinions.

See a lawyer if you are unable to do this yourself, a community legal centre may be able to assist.

Posted By: Lamothe
Date Posted: 07/November/2016 at 12:53
Hi, have been going through something similar. In our case it didn't get to the supreme court as they have to provide all documentations for their claim prior to this, outlining how they are destitute or due the money, which you do get to respond to and have an opportunity to negotiate a settlement if advised. Usually goes to mediation to try and settle prior to the supreme court, ours ended as they wouldn't provide their financials for the period they were together not just 3 years, or a copy of their will to see if the deceased was mentioned in their Will, it did however cost us about 20,000 and a hell of a lot of stress.It is heartbreaking but better to get a lawyer as things can get very messy very quickly. Hope this helps.

Posted By: Lamothe
Date Posted: 07/November/2016 at 12:55
The estate should pay the legal costs for advise.

Posted By: angies01
Date Posted: 15/November/2016 at 21:14
Thankyou all for your posts.Such a lot of work to do.We have 6 years of phone bills that we have been going through to dispute all claims of calls made etc.We have letters that prove what is said isn't true.Newspaper reports that show payments that have gone to the other party from bad investments they made and then won back.All of which they haven't declared to the lawyer and they still haven't shown anything that they were asked to show to prove they haven't been adequately provided for.It has been a lot of stress and work on our part and really isn't fair as all we have been doing is what is required as trustee and executer duties.

Posted By: citizen-joe
Date Posted: 16/November/2016 at 16:27
There are no guarantees that your expenses will be covered by the estate, remember that before you go committing to any large expenses. Engage a solicitor if you believe you may have a case.

Posted By: angies01
Date Posted: 22/November/2016 at 22:41
Can anyone please tell me what happens at a directional hearing re;a will contest?The other sibling is contesting fathers will.My husband is executer and trustee and has been gathering evidence(advice of his lawyer)to counter claims made by his sibling.She has not come up with any evidence to support the claims she has made to contest the will only her word.She does not live in Australia.My husband does.

Posted By: Lamothe
Date Posted: 23/November/2016 at 09:33
Hi Groupie,
A directions hearing is an informal court appearance. A directions hearing may be heard by a Magistrate or Registrar of the court. It will take place if you have not been able to resolve the dispute yourselves after the formal legal action has started. A directions hearing is held to look at the direction that the matter is heading in the courts and to discuss with the parties their options to resolve the matter. The purpose is to discover the position of each party and whether there is any possibility of settling any of the issues. If the matter cannot be settled, it may be set down for mediation or for a trial. This is quoted from a website, usually they will make you go to mediation to see what can be settled before you spend the big bucks. Hope this helps and good luck its a very stressful experience. Just gathers all your info be factual and get affidavits if directed to as it all helps.

Posted By: angies01
Date Posted: 23/November/2016 at 16:03
Thankyou Lamothe,
                                 Just such a process to go through especially as she hasn't even gathered any evidence whatsoever.We have been just pushed to the limit going through paperwork,phone records,letters,notes,bank statements,cheque stubbs etc and she starts everything and doesn't even come up with evidence.Surely she cant contest it without hard evidence not just her say so.She filled out an affidavit saying this that and the other why she hasn't been adequately provided for and we have pulled it to pieces with all the lies and have everything backing up that they are lying.Surely a court would want hard evidence?Such a waste of time and money trying to defend a fathers will,it is so sad that FIL went to his grave believing that what he worked hard for would be left as he wished, just stinks that someone can come in and just go against his wishes like he never mattered.

Posted By: Lamothe
Date Posted: 23/November/2016 at 16:30
Hi Groupie, that is exactly how we feel we are only starting to sort a few things out after 9 months and yes we had to pick her affidavit to bits and gather information and proof it wasn't true, the system is so wrong and the money that has been spent could have put my son through university it is ridiculous. Hang in there as I have had many moments where I have cried and felt I couldn't handle the stress, but like my husband says don't let them stress you that much its not worth your health

Posted By: angies01
Date Posted: 23/November/2016 at 22:27
Thankyou so much for all the information it really helps when someone else has experienced the same nightmare.

Posted By: angies01
Date Posted: 31/January/2018 at 15:52
Ok it has been some time since I was on here and a lot has happened.Firstly the mediation happened and there was out solicitor,a barrister and us,then there was husbands sister and her husband their solicitor and their barrister and also a female mediator/legal person(not sure what her position was).We were told we weren't allowed to speak only our solicitor and barrister could.The other party did not bring any evidence to back up their claims of need or not being adequately provided for,or their outgoing expenses only what they wrote on their affidavit.We had pages of evidence disputing any claims they had said.The female mediator was a bully basically yelling at us saying we (the estate)wont win if it goes to court,we should give them what they want as it will cost us an extra 100,000 dollars just to go into the court room blah blah blah.Such a horrible experience and our solicitor and barrister were almost agreeing with her instead of demanding the evidence to back up their claims.After 4 hours we had had enough and gave them double what there were originally left in the will and paid their fees.All up the fees together,our and theirs(the estate claims) came to almost 80,000 dollars.We were so totally disappointed in the legal system from that experience as it wasn't what the law stated about them having to prove need(and our solicitor saying it also)We have lost all faith in the system it just seems that the lawyers/solicitors and barristers all feather their own nests hand in hand.So that ended in Feb 2017.

Posted By: angies01
Date Posted: 31/January/2018 at 16:09
Now onto the next saga.Mother in law passed away in Sep.2017 and again husbands sister put a contest for the will in.This will leaves a small amount for my husband first then the remaining split between husband and his sister.The whole estate only had 60,000 dollars and that was before the funeral expenses.So even her solicitor said to ours it really isn't worth her while contesting it for such a small amount but because she wants to he has too.She is still living overseas and only came out here for 4 months in January for the last will contest and to have her operation on her back.She went back overseas in April 2017 with her winnings from Father in laws will.Now I hear she said she need an operation on her knee and I think that is the grounds that she will be contesting this will.Even though she came up with no evidence last time when she contested the last will on the grounds she needed operation on her back.We are going to stand up to the solicitor this time and not be bullied into gathering any evidence on what mother in laws money was spent on etc.It was spent on living expenses as her outgoings in the nursing home were more than her incoming so the extra was coming out of her savings to top up her expenses.She had medication and dental and also extra physio that was paid for out of her savings.We have all the receipts for this and also she was overpaid by Centrelink after father in law passed away so had to pay back almost 8,000 dollars.I don't feel we should have to gather all this evidence again to prove to his sister where the estate money had gone previously to mother in law passing away as it was her money and she had a right to spend it as she wished.All we think husbands sister will say is the estate should have more money in it as mother in law was left 100,000 dollars from father in laws will that was paid out in March 2017.We believe if she kicks up too much of a fuss we should just let it drag on so the solicitors get it all and no one else gets any.

Posted By: angies01
Date Posted: 31/January/2018 at 16:14
We don't want to go through all that time and effort again and have the other party do nothing.Mind you she didn't come to mother in laws funeral either and did not send a card flowers nothing just exactlythe same for father in laws funeral 1 year previously.I don't refer to my in laws as her parents as she never treated them so and hadn't had anything to do with them for the last 6 years of their lives and prior to that not much for over 30 yrs.Why should we waste our time?

Posted By: angies01
Date Posted: 22/February/2018 at 16:47
Update on other party,she now wants half and she dares question what happened to money that was left to MIL from FILs will?Where is the bond from the nursing home?Firstly MIL had to use the money that was left to her from Feb till she passed away in her part pension didn't cover all her accommodation fees and medication and any extras she wanted like pjs and shoes,clothes and a new walker etc and she didn't have to pay a bond as she was in high care and FIL paid a bond for himself.What business is it of hers anyway she has had nothing to do with them for over 6 years and prior to that hardly anything for the previous 30 yrs.I am so cranky at our so called legal system and the complete lack of empathy by some people.We do all the work to make sure my in laws money kept growing to make them as comfortable in their older years and some selfish person can come in and demand more than what was left to her.

Posted By: rannii
Date Posted: 23/February/2018 at 07:51
Can you clarify?

You are upset as a parents will did not provide for equally two children of that parent, and therefore the child contested the will to be “provided for”?

I’ve done a bit of reading on this the last few days, and from my understanding every child has a right to inherit from a parent. Given this inherent “right”, and the amount needed to prove “need” is not so stringent. Apparently to deter the courts is making an almost automatic distribution to a child, you need to ensure that you put substantial explainstion into why you excluded (or provided less) for that child.

The system is there to protect the rights of others. Because it doesn’t fall the way you want to, doesn’t necessarily mean it’s unfair. Unfortunately our blanket laws covered a generic set of circumstances & not individual circumstances.

Posted By: Luisa
Date Posted: 23/February/2018 at 23:13
I think the problem is the 2 'children' are the OP's spouse and their sibling. The OP and spouse did all they could to assist the MIL after the FIL died and now the sibling is wanting to know "where all the money went".
I think "all the money" (that would have been split 50/50 under FIL's will) went on caring for the MIL.
As long as the OP can show where the money went, the sibling can blow as much hot air as they want!

Posted By: angies01
Date Posted: 28/February/2018 at 15:50
Ok sorry if it all sounds confusing.My husband and his sister are the 2 parties in their parents wills.Sister was provided for in fathers will and there was a letter written by father in front of solicitor to state why she was not left as much and why she was left what she was.

She got extra at mediation in Feb 2017 as we were just over all the work and gathering of documents so the estate gave her some more just to end it all.She had nothing to do with her parents for the last 7 yrs and she has lived overseas for the last 4 of them.
No flowers or cards for either of them for birthdays,xmas,their illnesses,their hospital stays or even their deaths or funerals.

Now with mothers death in Sep 2017 she is contesting again.
The mother had $100,000 left to her from fathers estate(she already had her own small bank account as she had dementia and was known for giving money away to all the charities)so all the money was fathers so therefore had to be included in his will.

We are so sick of having all these questions on what happened to this and that etc from someone that wasn't here and had no idea what was going on or was even interested in it either until now because her share is not as much as she wants.

We looked after both parents and their financials and she is sitting back now basically accusing us of not declaring everything.We had to declare it for probate I don't understand how she can think we are dishonest and trying to hide things.

We have so much paperwork she has nothing.The mothers estate is so small even her solicitor told her it isn't worth it but she is still wasting money by firing off questions

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