with Evelyn Beaver Principal Solicitor , New Day Legal

Several years ago I received a phone call from a person enquiring about whether or not I would act for a relative in relation to a contested estate .

- The relative was interstate and had telephoned 25 different law firms in New South Wales – large , mediumsized and small . No-one else would take the case . Why ? Because it was a difficult case with complex legal issues .

- A family tragedy had occurred and both parents died within minutes of each other .

- Both of the parents had made wills several decades earlier but without updating them or giving any indication that they no longer wanted to provide for my client .

- My client had no income , no employment , ongoing medical and health needs , had been divorced but did not understand that it had been important to finalise all financial matters with his former spouse through family court property orders .

In our experience many clients in this type of situation are very anxious and keen to rush into Court without taking a step back and getting independent legal advice before taking the matter to Court , and checking whether or not they are an eligible person to make a claim .

That said it is also critical to file with

the Court within 12 months of the date of death and to get legal advice as early as possible .

The types of matters which the Court will consider include but are not limited to : -

- The location and value of the estate . ‘ What is it we are exactly fighting for and is it worth the stress or Court and the potential for escalating legal costs ?’ Potentially escalating legal costs in a hotly contested estate can costs hundreds of thousands of dollars if disputing parties cannot reasonably resolve their dispute early in litigation . It is also not worth fighting over a small estate where , in all likelihood , legal costs will outstrip the value of the estate .

- The relationship between the person making the claim and the deceased , including the character of the person making the claim .

- The financial needs of the person making the claim and whether or not they have any physical , mental or intellectual disability .

- The contribution ( if any ) of the person making the claim to the value of the deceased person ’ s estate .

- Did the deceased person already make provision for the person making the claim either during their lifetime or from the estate ?

- Was the person making the claim dependent on the deceased and / or

a member of their household ? - Any other competing claims on the estate .

This is not an exhaustive list and the Court may also consider other relevant matters .

So , the moral of this true story is simple : -

- Whether or not you think you are wealthy always consider making a Will .

- Every few years and if your family or individual circumstances change consider updating your

Will . Remember ... divorce , remarriage or death of a close family member may require you to consider changing an earlier will . It is important to seek out your own independent legal advice about whether or not your will may need updating .

Here at New Day Legal resolving contested estates are one of our key areas of law . If you think you may be entitled to make a claim on a deceased estate please call us on 9627 2051 for an initial consultation .