Sisters-in-law: What are your legal rights when contesting wills?

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Sebastian has cared for his elderly mother for years while his siblings haven’t lifted a finger – but now he fears a fight for his money is brewing.

Welcome to Sisters In Law, the weekly news.com.au column that solves all your legal problems. This week, our resident attorneys and sisters Alison and Jillian Barrett of Maurice Blackburn discuss your legal rights when it comes to contesting wills.

QUESTION: My very elderly mother has not seen my brother for years and has hardly any contact with my sister either, despite having treated her for years due to multiple illnesses. My siblings have not been cut off from her completely but will receive much less than me. However, I fear that once my mother passes away, a family feud will start and a nasty money fight will ensue. What are the rules for contesting wills? – Sébastien, ACT

REPLY: Estate disputes are often very complicated, not only because of the complexity of the legal issues involved, but because they also involve those close to the deceased who are emotionally affected.

Disputes can arise regardless of the quality of the drafting of a will.

To make sure that your mother’s will is legally valid and to minimize the risk of it being declared invalid, she should seek legal advice.

Legal advice is usually a good investment to make sure a will stands up to any challenge, as a will dispute can be costly for the estate and the people involved.

A lawyer will make sure that your mother was (or is) mentally capable at the time the will was made and understands the effect of her wishes regarding the division of her property and assets between you and your brothers and sisters.

There are many other detailed and complex legal requirements for a valid will, including being in writing and being a witness in a certain way.

If, when your mother dies, your siblings believe that she has not made adequate estate arrangements for their maintenance and support, then they can apply to the court to have the situation corrected.

This is called a family provision request.

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If this were to happen, before you apply to court, the ideal situation would be for your siblings to talk to you about the dispute in order to try to come to an agreement without having to go through the formal legal route.

If you come to an agreement, it must be confirmed in writing and all parties must sign it.

If informal discussions fail, the court claim will have to be continued.

Typically, the legal fees associated with making an application will be paid by your mother’s estate, but if your brother and sister are unsuccessful in contesting the will, they may be ordered to pay the estate fees. .

The court examines these requests in two stages:

1. Whether adequate arrangements have been made for your mother’s children; and

2. If adequate arrangements have not been made, the court will determine what arrangements need to be made for you and your siblings.

The court will consider a number of factors, including the size of your mother’s estate, the distribution under the will, your financial situation and that of your siblings, their age and health, and the relationship between all of you and your mother.

If one of your siblings was separated from your mother or if there had been a recent dispute, the court will take this into account.

If your mother had given a loan to one of her children, provided free housing, or worked for them before she died, these factors will also be relevant for a court.

As you can see, this area of ​​law is quite complex and everyone’s situation will be very different, so getting legal advice on your particular situation is often a good option.

This legal information is general in nature and should not be construed as specific legal advice or relied on. People requiring specific legal advice should consult a lawyer.

If you have a legal question that you would like Alison and Jillian to answer, please email [email protected]

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