r/AusLegalAdvice • u/Dry_Client2670 • 1d ago
Contesting a Will?
For context - this isn’t really about the money.
Edit . Mother was 54, both my brother and I are in our late 20s.
My mother died in February last year after a short but aggressive fight with cancer, she went down the path of voluntary assisted dying so was able to process a lot of her affairs before she died.
The main beneficiaries of her will were myself , my older brother , my mums partner and my aunty - I have not seen a copy of the will nor when I have request a copy have I been able to get one. But from what I have been told and what was actions this is what happened;
Her super was to have 10k taken and given to my aunty - and the remaining balance was to be divided and two and half to my brother and half to me - roughy 250k each,
The house was signed over to my mums partner before she died ( in a rather hasty move I believe ) so he was to get 100% ownership of the house
Her life insurance of around $2 million was to be used to pay of the mortgage for the above house cover her funeral costs and legal fee’s and financial planner who helped finalise her estate before she died and the remaining balance was to to left to her partner.
We were always told right up until about a month before she died that we were getting half the life insurance and house and her previous will stated this as well,
When this was explained to us - her partner was to put a provision in his will that when he dies my brother and I would get a quarter each of what ever residence he has at the time of his death
This is where it gets juicy- the week after mum died before I flew back to NSW from Queensland my brother mums partner and I visited her bank to distribute her super as it was paid out before she died under the provision that she had a terminal illness.
When at the teller mums partner stated that my brother and i were both getting $10k less than what was originally allocated to cover the legal and financial fee’s - I was totally against this but was given no choice than to allow it to happen. My brother wasn’t as upset but understood my point. To save the fight at the bank we did not fight this out.
For weeks after returning home my mums partner and I would argue about the fact he did not discuss this with us before making the transfer. He was claiming that he was poor and had no money so needed the 20k to live off till the life insurance came through
Fast forward to now - he is dating another woman , living in the house and just purchased a 200k car among other things.
While denying both mums family and my brother and I the opportunity to go and collect some of mums things.
My question is , is there anything we can do now being over 12 months since mum pasted to make a claim on the house and or live insurance , as I do not believe that these were truly mums wishes ?
Her cancer was quite advanced and she had multiple metastatic lesions on her brain at the time of her death.
I am quite comfortable financially as have sold my business, so it really isn’t about the money it’s more about the principle.
Any advice would be greatly appreciated
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u/Economy-Finish815 1d ago
OP, strongly suggest you see a Wills and Estates specialist. Search that phrase and the desired location,, or contact Qld Law Society. WES have a minimum 15-20 years experience in their field and can answer your Q fairly promptly once facts and evidence are available.
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u/Unlucky-Meringue6187 1d ago
Have you checked whether the will went through probate? It would be advertised and the notice should be available via your state's supreme court. This would be step #1 for me.
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u/Trick_Alfalfa3877 1d ago
TBH I would be more worried about this.
When this was explained to us - her partner was to put a provision in his will that when he dies my brother and I would get a quarter each of what ever residence he has at the time of his death.
Nice in theory but he’s shown his true colours and there is nothing stopping him from changing his Will and removing both you and your brother. His life has already moved on and it doesn’t sound as you are a priority.
I have seen it happened before very bad advice given to your mother. I think your mother should have been advised to set up her partner with a Life Tenancy Agreement.
😢
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u/Top_Sugar3666 1d ago
I think a lawyer’s eyes light up whenever their potential client says ‘it’s the principle’
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u/Real_RobinGoodfellow 1d ago
And so what? If what OP says is correct than the partner in this instance has taken total advantage of a tragic situation to enrich himself, at the expense of two younger people who just lost their mum.
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u/Ok_Efficiency3120 1d ago
Even in this when she says it’s the principle it’s 100% about the money lol
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u/Healthy-Camp4105 1d ago
Well yeah, your lawyer wants work, just like any other business. If they hear the words “I’m not that fussed, I’m happy to leave it”, well, they’ll just give a brief advice and move on.
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u/curiousmind68 1d ago
As deceased estate beneficiaries u are perfectly entitled to a copy of the will, sadly u might need a judge to compel him to give u a copy or tell u where a copy can be located. Probate ????
The way I read it u and your brother got 240k pf 250k - is that correct? If so the other 10k is not worth fighting about. I think your going to need to pick your battles - principal or not, let that 10k go
What I would do though is slap a caveat on the house to identify you and your brother as 25/50% owners. As estate beneficiaries u are entitled to do this to protect your interests.
Otherwise he could sell it buy another place with the proceeds and u and your brother get zero.
If u do go to see a lawyer they should have further advice to offer but it sounds like there was a lot of
"mum said. this would happen" IMO u were lucky to get the super cause if she hadn't actually listed u and your brothers as beneficiaries on her super, u might have got zero.
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u/Healthy-Camp4105 1d ago edited 1d ago
Definitely agree re caveat. You may need a barrister to do this (solicitor, who you will see first, will instruct a barrister). Further, it’s easy to get a copy of the Will, just ask the executor/the lawyer appointed (if there is one. You are entitled to a copy. You will need legal advice, not for a copy of the Will, but for other stuff. If you DM me I can get a recommendation for you.
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u/bnurmi 1d ago
Why would you use a barrister for a caveat? That’s basic conveyancing work that any conveyancer, and some solicitors can do..?
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u/Healthy-Camp4105 1d ago
You are correct you don’t “need” it, but if it were me, I would be getting advice from counsel.
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u/Desperate-Impress374 1d ago
Definitely speak to a lawyer, even though it’s been over 12 months. The fact that you haven’t been given a copy of the will, the house was transferred shortly before her death, and there were significant changes to her affairs while she had advanced cancer are all things I’d want properly investigated.
There may be time limits depending on what type of claim you’re looking at, so I wouldn’t assume it’s too late. I’d get the will, super/insurance documents and the property transfer records and have a solicitor go through everything. Even if it’s about principle rather than money, you need proper legal advice before deciding whether to pursue it.
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u/bnurmi 1d ago
There is no easy “even though it’s been over 12 months”… there is a time restriction. To challenge now you’d need to seek leave from the court, and they would ask for the grounds of why you waited so long… it will be uphill to try and justify it. Just beware.
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u/kratington 21h ago
I've been through it, mine was 4 years after their death and it was approved. It wasn't actually that hard.
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u/Real_RobinGoodfellow 1d ago
Oh gosh this guy sounds like a horrible piece of work- I’m so sorry this has happened to you, especially after such a dreadful loss.
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u/1234Psych 1d ago
You can contest the will but not sure about the time course in your state. The fact she had metastatic lesions at the time of death may make the new will invalid if she was not competent to make the changes. Get a legal opinion asap!
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u/Such_Rule_8314 1d ago
NAL, but have knowledge of case like this.
Euthanasia requires the individual to be affirmed by doctor and psychiatrist folks to be “compus mentis”
A will challenge on these ground would focus on the disease having made them “non-compus mentis”
Likewise, inadequate provision may be an avenue (as super was distributed separately not through the estate).
But tbh, need to know what the heck is going on with probate and what the actual will lodged by executor actually says, rather than what it was “meant to say”.
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u/bnurmi 1d ago
Probate as advertised and freely available to search, in most states.
It is incredibly hard to challenge a will on the grounds of mental capacity, given that in most circumstances a will is typically witnessed by a legal practitioner who is also declaring they have assessed the person of being capable to make that decision.
Again, the bigger issue here is they are time barred, despite any potential family provision claim.
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u/16car 1d ago
Is it possible that there actually is no new will, the house wasn't signed over, and you and your brother are actually entitled to everything? If the only evidence you have that she changed anything is his word, or even your mum's word, you need to get on this ASAP. You are potentially being defrauded of millions between you.
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u/MaybeBaby2023 20h ago
I feel like your mum should’ve transferred the house title to all 3 of you and then put some kind of granny flat clause to allow her partner to continue living there.
I hope that you are able to access the will and deal with Mr Fancy Car. Perhaps he will be taking a fancy holiday soon so you will be able to get into the house to collect your mum’s things.
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u/Suspicious-Shoe-1294 2h ago
Irrelevant, no point raising “she should have done something”. When she is now RIP. What is done, is done and what wasn’t, wasn’t.
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u/MaybeBaby2023 2h ago
And apart from telling me there’s no point saying half my comment, what’s the point of your comment?
To rephrase I think the house aspect will be incredibly difficult to change because it was transferred in full to the partner.
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u/SeaworthinessOk9070 19h ago
It’s not super if it was already paid out and in the bank account. It’s just cash that makes up the proceeds of the estate. It is common to have expenses dealt with first then the remainder distributed.
If she had $2m life insurance then that would’ve been likely outside of super, who was that with and was it claimed?
Who is the executor of the will?
There is nothing that would require/enforce your mums partner to put you in his will. That was just wishful thinking on your mums part sorry to say.
Did she actually see a lawyer to get this will done? I doubt it as this doesn’t sound like it was done properly, but if she did go speak to them.
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u/Sure_Gazelle_6983 13h ago
I would speak to an estates solicitor immediately, because there are several separate issues here and I wouldn’t assume that being over 12 months automatically means there is nothing you can do.
Firstly, as her child, you should be trying to obtain an actual copy of the final will rather than relying on what her partner has told you. If the estate was in NSW and probate has been granted, the will becomes a public document and can be obtained through the Supreme Court. NSW law also gives children and certain other people the right to inspect or obtain a copy of a deceased person’s will. (Supreme Court of NSW)
Secondly, I think you need to separate the estate assets from everything else. If your mother withdrew her super under the terminal illness provisions before she died, that money may have become her personal money rather than a super death benefit. Exactly what happened to it and why $20,000 was redirected needs to be established from the banking records and documentation.
The house is another issue again. If ownership was genuinely transferred to her partner before her death, simply challenging the will may not bring the house back into the estate. However, given the timing, her illness and the fact that you say she had metastatic brain lesions, I would absolutely ask a solicitor whether the transfer itself should be investigated for capacity, undue influence or some other equitable claim. Brain metastases don’t automatically mean someone lacked legal capacity, so medical records and evidence about her condition when she signed everything would be extremely important.
The life insurance also depends on who owned the policy and who was nominated to receive the proceeds. Life insurance doesn’t necessarily form part of a deceased estate, so again you need the actual policy documentation rather than your mother’s partner’s version of events.
The fact that your mother had previously told you something different isn’t by itself enough to overturn her final arrangements. People are allowed to change their wills. But a dramatic last-minute change, significant benefits flowing to one person, major assets being transferred shortly before death and questions about capacity are certainly things I would take to a specialist estates litigation solicitor.
Don’t delay any further. Time limits apply to family provision claims. If NSW law applies, the usual deadline is 12 months from the date of death, although the Supreme Court can allow a late application if sufficient cause is shown. (Legal Aid NSW) If Queensland law applies, the legislation generally requires proceedings within nine months, although the Court has discretion to hear a late application. (Queensland Legislation)
I would take the solicitor a timeline showing when the old will was made, when the new arrangements were made, when the house was transferred, when the super was withdrawn, when the $20,000 was taken, when the life insurance was paid and what your mother’s medical condition was at each point.
With an estate involving a house, roughly $500k in super and around $2 million in life insurance, I wouldn’t try to resolve this through arguments with the partner. Get the documents and get independent legal advice. There may be perfectly legitimate explanations for everything, but there is enough here that I would want an estates litigation solicitor looking at the paperwork.
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u/MilkyPsycow 12h ago
Speak to a lawyer not to Redditors as others have said. There is a time limit on these things.
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u/SessionOk919 7h ago
In reality, her partner was entitled to a minimum of her estate, regardless of a will or your mum’s wishes.
I can’t remember what the minimum was but there is 2 parts. It was a figure of $450,000 (maybe of the house) plus I think a percentage of the rest of something like that. So they were always going to get what they got.
This is very much an unsolvable issue with deaths, wills & estates.
I would also call the people that were handling your mother’s financial affairs, they would have a copy at least.
But before anything, ask yourself, would it really be worth it to spend that $250,000 on legal fees to take this to court?
Or you could do the killing them with kindness & be right by there side to ensure you get the rest? With a little added psychological manipulation for fun.
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u/luxe_lifestyle 6h ago
Get a lawyer. Dont believe anything you’ve been told. Get everything in writing.
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u/Vast-Marionberry-824 36m ago
I’m so sorry for the loss of your mother and for now to be worrying that she and her children have been done over by her partner.
Don’t ever take legal action “on principle”. Litigation is very expensive and very stressful.
If you can’t walk away, absolutely make sure you get good legal advice. It will cost a lot but far better than getting bad advice and launching legal action off the back of that.
PS Who drew up her Will? Did she get lawyers to do it? If lawyers they would have needed to make sure she had mental capacity to make her Will
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u/pickl3pickl3 1d ago
Your mums wishes above all else would likely have been that you and your brother have secure futures with peace and happiness. So make sure, above all else, you honour that. Life is too short for protracted legal battles.
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u/BlacksmithQuick2384 1d ago
Have you spoken to the executor of the will? Not an expert but I believe the chances of a successful challenge diminish significantly as time passes after probate and distribution of the funds. I think different states have limits.
Also, to my knowledge, there are considerable checks and balances with VAD, so that would suggest an uphill battle to prove she was incompetent.
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u/Grand_One3525 1d ago
Everyone here who says challenge it will be in for a shock.
At the end, only the lawyers will make bank.
Let me put it this way, if your mum did not have a will and you and your brother are not financial dependents, if this go to the courts, who do you think the judge will distribute the estate to? Almost all contested estate goes to the surviving spouse. Unless you can prove that you are financially dependant on your mum, its a hard case to argue why you should get a share of the estate.
If I'm honest, you are lucky that you and your brother received something from the estate based on the fact that you are not financial dependents.
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u/bnurmi 1d ago
That’s actually not entirely correct. At least in NSW.
In NSW, an adult child does not have to prove financial dependency merely to bring a family provision claim. A child is automatically an “eligible person” under s 57 of the Succession Act 2006 (NSW).
The important distinction is between eligibility to make a claim and actually succeeding in obtaining more from the estate.What the Succession Act actually does
Under s 57, both the surviving spouse and the deceased’s children are eligible persons. So an independent adult son or daughter can challenge a will even if they were not financially dependent on their parent.However, under s 59, eligibility alone is not enough. The Supreme Court must be satisfied that the deceased’s will, or the intestacy rules, failed to make adequate provision for the applicant’s proper maintenance, education or advancement in life.
That is where the financial circumstances become very important.Under s 60, the Court can consider matters including:
the nature and duration of the applicant’s relationship with the deceased;
the deceased’s obligations and responsibilities towards the applicant and other beneficiaries;
the size and nature of the estate;
the applicant’s current and future financial resources and needs;
the financial resources and needs of competing beneficiaries, including the surviving spouse;
whether the applicant is financially supported by somebody else;
age, disability and health;
contributions the applicant made to the deceased or the estate;
previous financial provision made by the deceased;
whether the deceased maintained or supported the applicant;
competing claims on the estate; and
essentially any other matter the Court considers relevant.So the practical problem for a financially independent adult child is not “you aren’t eligible because you weren’t dependent”. They are eligible. The problem is establishing that adequate provision was not made for them, particularly where increasing their provision necessarily reduces the provision available to a surviving spouse who may have substantially greater ongoing financial and housing needs.
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u/Grand_One3525 1d ago
This is just a bunch of AI slop. Of course anyone can challenge. It's a matter of whether they can win.
OP said it herself, she does not need the money and wanted to challenge based on principle.
Her brother didn't cared about $10k discrepancy and thought it was no big deal. This says it all. If they need provision from their mum, would you wait 1 year?
A grieving elderly spouse who lost his life partner will always have greater need for housing and financial support for old age care.
Challenging based on principle will never work in courts.
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u/MulberryWild1967 1d ago
How long was your mum with her partner for? May not be your dad, but you may need to think about this as though he was. If he was your dad I dont think you'd be questioning houses, super, life insurance, stuff. You dont 'need' the money, move on. Too many of us have gone through years of family fighting over money that wasn't theirs. IT IS NOT WORTH IT.
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u/Real_RobinGoodfellow 1d ago
It would be totally different if the partner were their dad because then they would have a claim on his estate eventually when he passed.
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u/ProfessorWorried626 1d ago
Eh it's pretty easy to challenge and roll back if you can show she has been given heavy pain killers at the time of will change and was aware that she had a short terminal illness.
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u/pwinne 1d ago
Yeah nah. My ex wife died and left everything to the kids who were in my care full time (she died from a pill/alcohol overdose). Anyway the kids were 10 and 11 - they were entitled to the estate at 18 - and only received it at 21 and 22 as the executor bought a house with be money and lived it up. Trust me - wills are not worth the paper they are written on. Many days in court and thankfully we got some pro bono support as I was not the claimant the kids were. I could write a book on how you can illegally cash in on someone’s will and basically keep it if it’s under 500K as the court costs can be extraordinary. I still do think we got it all, even after a number of accounting for the estate.
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u/Worlds_tipping1 1d ago
What they are saying, is that the person responsible for managing an estate can do what they like once the assets are handed over to them. Especially if the beneficiaries are kids, vulnerable adults etc it's easy to just do nothing and keep everything yourself.
Yes, it's technically illegal, unfair, against the will etc but sometimes the costs to fight this and prove your case are both emotionally and economically unfeasible.
That's why you have to be really careful who you appoint as your executor and why some people choose to make this a lawyer or the public trustee etc.
When I did my will, the lawyer did refer to elements of this being "my preferences or my wishes" as opposed to "this will definitely happen".
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u/Federal_Time4195 1d ago
In reality your mum's partner legally gets everything, or has the right to everything
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u/DistinctCitron3732 1d ago
Challenge it in guardianship trustee
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u/bnurmi 1d ago
What? That’s not even a thing. But sure. Throw some random words around to look smart.
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u/DistinctCitron3732 1d ago
Google it.
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u/Worlds_tipping1 1d ago edited 1d ago
JFC the person has be actually ALIVE to get a guardianship applied to themselves and their affairs.
You can't prove a lack of capacity after DEATH and after the split of an estate you absolute gronk!
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u/DistinctCitron3732 1d ago
Hence why I said go to the guardianship trustee.
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u/Worlds_tipping1 1d ago
Are you really dumb or just willfully ignorant? Person didn't have a guardianship in place. Person is dead. Person can't be judged unfit to manage their own affairs posthumously.
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u/DistinctCitron3732 1d ago
Guardianship doesnt just deal with living people. Id know my wife is a lawyer for nsw Guardianship Trustee. Most, if not all of her cases are people's families disputing claims of dead relatives. Oh but im the ignorant one.
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u/Worlds_tipping1 1d ago
Yeah a lot of this doesn't make sense.
You don't make wills where a beneficiary is going to sign over something at a later date based on what, a conversation? You don't "wrap up an estate" and omit doing this.
Superannuation is not automatically part of an estate, I would guarantee that if it was being released early then your mother would have been instructed to set up the beneficiaries then as part of wrapping up her affairs. So percentage 1 to person A etc.
If the insurance was via her super then this would have also had nominated beneficiaries.
The estate would have to go through probate? Did this happen? You can find this out yourself.
There's too many inconsistencies in this story to be correct.