Defending a Will

When someone decides to contest a Will, it is the responsibility of either the executor or the beneficiary to defend the contested Will.

Once probate has been granted, the executor is responsible for following a formal legal process to make sure the Will is executed in accordance with the relevant state laws. Each state has different laws that govern Wills and Estates and they are complex so it is recommended you seek expert legal advice from a specialist Will dispute lawyer.

All matters concerning Will disputes are heard in the Supreme Court so it will be necessary to engage legal advice. This area of the law is very specialised so when you’re looking for a lawyer to handle your Will dispute it is recommended you obtain advice from a lawyer or solicitor who is an experienced expert in Will disputes. Your local criminal or family lawyer is not likely to have the necessary experience or understanding of the Wills, Probate and Administration Act.

Our objective is to resolve any Will dispute during mediation. Settling a dispute before it gets to court is usually the best outcome for all parties. Early resolution will save you legal fees so that more funds can be distributed to the beneficiaries. To achieve a favourable outcome you will need a legal team that understands the process, knows the right questions to ask and can then make an objective assessment about how to facilitate an early resolution.

I was in a same-sex de facto relationship. Unfortunately, my partner died and left the bulk of his Estate to me. His family did not recognise us as a couple and are now making a claim on his Will. How do I go about defending myself?

Your partner’s family are making a claim on his Estate and this is commonly called a family provision claim.

Under the Succession Act, only eligible persons are able to make a family provision claim. Eligible persons include de facto partners, children of the deceased and a person who was, at any particular time, wholly or partly dependent on the deceased and was a member of the deceased household at any time.

Based on the above, your partner’s family may be able to bring a family provision claim against your partner’s Estate if they can show the Court that, they were a member of your partner’s household at any time and most importantly, were wholly or partly dependent on your partner at any time. If they are unable to show the Court that they are an eligible person as defined in the Succession Act, then they would be unable to make a family provision claim against your partner’s Estate.

You need to seek expert legal advice on how to defend your inheritance from your partner, from a family provision claim. This includes advice on preparing your evidence, to ensure the Court accepts you were in a de facto relationship, as well as advice on whether the matter can be settled through mediation with your partner’s family.

The Succession Act is aimed at the speedy resolution of family provision claims, without the need for the matter to go to a court hearing. To ensure this, the Court will order the parties to attend mediation early in the proceedings and a large majority of family provision claims are settled by mediation, saving both parties from having to participate in what could be an emotional court hearing, as well as saving the Estate from having to pay legal costs.

It is important that you have expert legal advice before attending a family provision claim mediation as this is the best way to defend your inheritance by presenting a strong case to your partner’s family at mediation. This includes ensuring that his family are presented with strong evidence showing that you and your partner were in a bona fide and genuine de facto relationship.

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Jane Araneda
Jane Araneda
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Thanks to Graeme, Blaise and their team at Heckenberg Lawyers for helping us finalise our matter in a timely manner. They were always very helpful and professional. They took care of everything very well, which meant that there was no added stress on me and my family. Jane A.
Kim Pink
Kim Pink
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I found Heckenberg Lawyers to be very professional and knowledgeable. Graeme took the time and explained the entire process to me. He was never pushy nor was he just after "his cut" as so many other practices are. He was at all times looking out for the best interest of the estate and not wanting it to be eaten. I found his staff to be extremely thorough and attentive. I would have no hesitations to recommend this practice if you want the best outcome possible.
Donna Hodges
Donna Hodges
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Blaise was extremely professional in assisting with all matters to do with my fathers estate and probate. She made an extremely complex process very easy to understand and instilled great confidence at a difficult personal time for our family.
Sonja Psaroudis
Sonja Psaroudis
5-Star Google Review
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If you need legal representation in a matter to do with Wills & Estate law I highly recommend Graeme, Blaise and the whole team at Heckenberg. Their knowledge and expertise in this area of the law was a huge comfort at a very difficult time, saving all parties involved time and money in the long run. Thanks again .!
Olma Mignacca
Olma Mignacca
5-Star Google Review
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Graeme is trustworthy and thorough. His charges were reasonable and easily understood. The team was considerate and helpful.
Samuel Burns
Samuel Burns
5-Star Google Review
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As the executor of an estate, I engaged Graeme and his team to handle a family provision claim and probate matter. I found Graeme to be professional and knowledgeable. Throughout the entire process, Graeme treated all parties involved with respect. He was always willing to take my concerns onboard and never pushy. Highly recommended.
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