Will entitlements

A member asked over 9 years ago

Will entitlements

What are my rights when my remaining parent who is 80+ years of age has removed me from the will? The reason she said is because I am not competent with my Bi-polar disorder.

Due to unfortunate circumstances, me and my husband have lost our life savings due to the GFC. My mother blames us as being reckless and has willed my inheritance to my two sons.

I intend to fight this when the time comes and she is not with us anymore. I know my siblings will follow this will to the letter. I would like to know if I have any rights in this case?

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Law Advisor Research Team

Researchers at LawAdvisor

Hi there. Unless you can show that your mother is does not have adequate mental capacity to have altered her will the way that she did, there is nothing you can do to change it. Her property belongs to her, and she has an absolute right to deal with it how she sees fit (regardless of her age or the financial situation of her relatives).

However, when a person passes away and their will is being distributed, it might be open to you to contest it under the Administration and Probate Act 1958 (Vic). Wills are usually challenged by people who are close to the deceased, such as spouses, carers or children. However, it is not clear whether you will be able to show that you have the right to challenge her will. Usually those who are successful in challenging a will are those who depended on the deceased before they died (such as children) and so need continued support. Challenging a will will involve making an application to the Supreme Court of Victoria. If you are successful, the the Court may order that provision be made out of the estate of a deceased person for your maintenance and support.

Suggested way forward

However, this is a complex area of law, and it is not clear whether you will have a claim here. We recommend that you speak to a lawyer in order to get a better understanding of the likelihood you would be successful if you challenged your mother’s will. By pressing the "Take Action" button through LawAdvisor - which opens in early September - we can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Answered over 9 years ago Legal disclaimer

1 lawyer agrees with this answer

Thank

James D. Ford Gaicd

Hi, generally I agree with the above answer.

However, it suggests Victorian legislation as a basis for contesting the terms of the Will.

As the query has indicated that you are in Queensland, Part IV of the Succession Act (Qld) 1981 will most likely be the legislation that will need to be relied upon in making a Family Provision Claim, if Qld is indeed, the state which is applicable to your situation.

Generally speaking, even if your case for Family Provision is not strong, an Executor (and the other Beneficiaries) once they obtain legal advice... are open to negotiating a settlement outcome, rather than taking the matter to Court, as this can involve significant legal costs (which deplete the estate) and delays in distribution of the estate.

Kind regards,

James

about 9 years ago

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