Contested Estate Claims

Contested Estate Claims

If a loved one has died (with or without a valid will) there is always a possibility that a contest may arise as to who should inherit and/or the amount of any inheritance. If that is or may be the case in your situation, then you may like to read on.

If the person died intestate (which simply means that they died without a valid will) then you (or a family member) may need to make an application to the WA Supreme Court for a grant of Letters of Administration so that you can then deal with the estate of the deceased person as his or her personal legal representative. In broad terms, an application for Letters of Administration can be made by any one or more of the persons entitled to distribution of the estate, or to any other person (whether a creditor of the estate or not) if there is no person entitled to distribution.

If the person died leaving a valid will then the person (or people) nominated as the executor under the terms of the will may need to make an application to the WA Supreme Court for a Grant of Probate (depending upon the value of the estate) so that they can then deal with the estate of the deceased person as his or her personal legal representative. Claims can be made against an estate contesting an inheritance pursuant to the Family Provision Act 1972. A person who wants to contest an inheritance has 6 months (as of right) in which to bring such a claim against the estate.

Further, where a person dies without leaving a valid will, some assets (such as vehicles) can be dealt with without needing to first obtain Letters of Administration. To this end, where an estate is contested or there is concern that assets will be lost to the estate for any reason, time can be of the essence and in some instances, ‘freezing orders’ may need to be sought to preserve estate assets and avoid them being sold and the sale proceeds distributed (which can make recovery of those proceeds more difficult). With regards to vehicles, it is specifically worth noting that if a person dies without leaving a valid will, a vehicle registration can subsequently be transferred to a family member (including a de facto partner) by a Statutory Declaration. In other words, you may think that deceased’s vehicle/s will be preserved for the estate, but in the meantime another family member may have transferred the registration into their name and then dealt with (ie sold) the vehicle/s, keeping the proceeds for themselves.

Furthermore, section 139 of the Administration Act 1903 (WA) allows authorised deposit-taking institutions (ADI’s) (eg banks) to release funds up to $50,000 in certain circumstances. An ADI is also permitted to release funds in payment of funeral expenses (or to reimburse a person who has already paid those expenses) and pay the balance of an account to any person who appears to the satisfaction of that ADI to be the widower, widow, parent or child of the deceased, or a person who was living as a de facto partner of the deceased immediately before death. This can be problematic where there is a contest regarding the estate (particularly when a Grant of Probate or Letters of Administration has not been applied for and/or granted as yet). Again, time can be of the essence in this regard and placing a bank on notice not to distribute the balance of an account of the deceased person pending the resolution of the dispute potentially becomes a high priority. The same may apply for other financial institutions, such as an insurer (which is often a superannuation provider) releasing a payment of a life insurance policy to the estate.

Finally, if you have read this far and still have queries or if you think that you will need some practical advice about your situation, then now is probably the time to get in touch. Austral Legal can help and we offer an initial discounted 30-minute SmartMove appointment for $80 by phone or in person at our office to discuss your situation. Bookings can be made online or simply by phoning the office. Once we have a handle on what is required, we may well be able to offer a fixed fee for any further legal services, giving you cost certainty from the start.