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Commence a contested will claim: Mother transfers property to one child prior to death

A son finds that many years ago his widowed mother transferred her property to her daughter,

his sister. Now, with the mother has gone, the son finds that there is nothing to pass under the

Will, and everything is effectively already in the name of the daughter.

He said that the Will may be invalid but this does not change the position for him. There is

nothing in the estate to pass to him so there is no point in arguing as to whether the Will is

valid or not valid.

He does not believe that there is anything technically wrong with the transfer and he believes

that his mother did the transfer of the property to her daughter through her solicitor with full

knowledge of what she was doing.

He will try and see whether there are any other assets against which he can claim but

otherwise, commencing a challenge to the Will will probably fail.


Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

Even if a person is successful in contesting a Will, if there are no assets in the estate, any Court

Order in their favour will be ineffective. As the house was transferred some time ago, it seems

that his application cannot help him to retrieve that property.

Careful legal analysis needs to focus on whether the mother had capacity to transfer the property

to the daughter, but based upon the facts, it would seem that she did.


An estate administration issue: Property left in Will disposed of before death

A son found that under his father’s Will he was left one house, another house was left to his

brother, and a small amount of cash remained to be divided between them.

Before the father died the house that was said to be going to this son in the Will, was sold and

he was told that apart from half of the cash, he would get nothing.

As a child he is able to contest the Will and a factor in his favour would be that it was

intended that his father was to leave him this house, and the will was not rewritten after it was

sold. However he will not be able to claim the full value of the house.

It is also quite possible that the proceeds of the sale can be traced and if they are held in a

bank account and/or were disposed of by an attorney during the life of the deceased, it might

be possible to have it pass under the Will.

It may also be necessary to apply to the Court to interpret the Will in a favourable manner or

to rectify it.

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

The effect of selling the property is that the house that was to go to the son no longer is owned

by the estate and he cannot benefit from that.

If the property was sold by an attorney, and/or if the assets are clearly traceable to particular

account or other form, the operation of the law and the Will may mean that these assets can pass

to the son who was intended to benefit, rather than going as “cash” between him and his brother.


Commence a contested will claim: Claim by daughter competes with a girlfriend

The daughter claims that she has not been properly provided for in her father’s Will.

The father was wealthy and there is a substantial estate.

She has threatened to contest the Will, and the deceased’s female friend has now stated that

she intends to contest as well.

The daughter has been advised that as the friend was never dependent upon the deceased, had

never lived with the deceased, and was independently wealthy, the friend is unlikely to

succeed, and is probably unlikely to bring an application anyway.

The friend has claimed that she was living with the deceased, but in fact they did stay over at

each other’s houses on more than one night a week and this was motivated by convenience.

This would seem not to amount to cohabitation in any real sense.

On that basis the daughter feels confident that her claim will be successful, and the girlfriend

will not be able to claim as being in a domestic relationship with the deceased.

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

In order to contest the Will in England the girlfriend needs to show that she lived in the same

household as the man as his wife for a period of two years immediately preceding the date upon

which he died.

It may be possible for him to show this if they in fact lived together and shared both houses, but

this does not seem to be the case.


Commence a Will Contest Claim: Jurisdiction of overseas property

A son who lives in Australia is enquiring about his father’s estate, who died several months

ago in France without a Will.

The father had moved to France some years ago, and was single when he died, but left a

couple of flats.

He wanted to know what his inheritance rights may be, assuming that there was no Will.

As the father was domiciled in France, meaning that this was his long-term home where he

lived with no intention of resuming living in Australia, it is clear that the assets will pass

under French law.

If the father did in fact have a partner, the partner will probably have an option of taking full

ownership in a share of part of the assets, and the balance will be held on behalf of the

children in Australia.

If there was no partner, then all of it will be held on behalf of the children in Australia.

He will need to obtain a lawyer, and as he has no money, he will need a no win/no fee lawyer

or other lawyer who can structure a financial arrangement for the fees to enable him to collect

his inheritance.

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

In all applications to contest a Will it is important to know which jurisdiction (place to sue)

apply. The laws of a person’s domicile, which is the place of their habitual residence, normally

deals with most claims, as that is the place where these claims can be brought.

However if someone owns real estate in another jurisdiction, the laws of that country will

usually determine whether or not a person can bring an application to contest a Will: if the

deceased was not domiciled in that foreign county, it is unlikely that anyone can contest a will or

contest any Intestacy Rules that may apply.


This suits a Mediation Settlement: Daughter wants to claim assets in family trust

The daughter of a wealthy family has found that her father died bankrupt, and that all of his

assets are held in a family trust.

The father lived in Victoria and that is where the trust was established.

She wanted to know whether she could commence something like a Will dispute, by claiming

against the assets of the trust, but as she has never been distributed anything through the trust,

she has no claim against the trust assets at all.

If she had lived in New South Wales it might be possible under the “Notional Estate”

provisions to access the trust assets for any capital award that may be given to her if she

contested the Will.

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

In Victoria and most mainland states, the law does not enable someone to access assets in family

trusts, in order to satisfy a claim, if there are not sufficient assets in the estate. The situation is

different in NSW, where notional estate provisions apply.


A late application problem: out of time: Daughter: Late claim destroyed by her actions

A woman has recently decided to contest the Will, even though it is a number of years since

her father died. She had left everything up to her brother to sort out her father’s estate, and

then found that her father had left everything to the brother, and nothing to her.

The property involved is a farm and the brother has done nothing with it, and has not paid the

rates since the father died.

She was told by her advisors that she may be able to file her application to contest the Will,

and claim a share, even though it is late, because there has been no distribution of assets, the

executor has done nothing, and it would not be unfair on the brother to do so.

After receiving legal advice she called her brother and told him that she was going to make a

claim for something from the Will.

A couple of months later when she decided to make the claim she was then advised that the

brother had recently transferred the property into his name pursuant to the terms of the Will

and that her application to make a late claim has probably failed due to her telling him and

failing to act promptly. Once the estate had been wound up the court is unlikely to give her

permission to claim late.

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

If the woman had not called her brother and she made her application before he transferred

the property, the Court may have given its consent to her bringing her application late,

because the estate had not been administered. However once the estate has been

administered, the Court will be reluctant to give her consent to bring the claim late. It would

have been different if the brother had actively misled her in some way and put her off

commencing a claim.


Commence a contested will claim: Sister breaks promise to leave assets to brother

Harry and his sister had always got on well, and when Harry’s mother died he was

disappointed to see that his mother left everything to his sister, Mary. He wanted to contest

the Will but Mary said that she would compensate him in her Will, if she was to die first.

Mary died after some years and he found that she left him nothing.

He realises that without a Contract he has nothing enforceable against Mary’s estate. He

could not prove that he had given up his rights to claim against his mother’s estate because of

Mary’s promise, and he had not changed his position in the expectation that Mary was to

leave anything to him.

In the State in which he lives a brother cannot make a claim against a sister’s estate by

contesting the Will and he cannot challenge her Will.

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

This problem illustrates that in order to contest a Will a person needs to be qualified to bring the

claim: in all States of Australia in order to contest a Will you need to fit into a category of

claimants. Brothers and sisters usually cannot claim unless they were dependent upon the



Defend a Will Challenge: Administrator faces multiple claims

Harry’s father died two years ago intestate, leaving a very valuable house in one of the major


Harry applied for letters of Administration.

The father had lived with his girlfriend in that house for many, many years. She is

independently wealthy.

There is a huge mortgage on the property and the bank have told Harry that as administrator,

he is responsible for selling the property and paying out the bank.

He would like to do that, but the girlfriend is now claiming part ownership of the house, and

also considering challenging the intestacy saying it is unfair that she has not received


Because of the competing claims Harry does not know what to do. His brother and sister

want their inheritance quickly.

Harry has decided that the best thing to do is to try to settle the girlfriend’s claim against the

house, and to arrange for the bank to wait until this has been dealt with. The bank can then

wait for him to sell the property and then pay them out.

It is better for him to try and manage this process rather than leave it for the bank to appoint

its own lawyers to sell up the property, and then fight things with the girlfriend, which would

considerably add to cost.

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

Harry needs advice on how best to juggle things, and how to properly administer the estate.

Whether the girlfriend will succeed in contesting the intestacy, depends upon whether she can

establish that they had lived together. The process is similar to contesting a Will


Commence a contested will claim: Father’s Niece Inherits – Children Lose Out

Two sons find that shortly before he died their father made a new Will leaving everything to

his sister’s daughter (their favourite cousin). The sister prepared the Will. Would they be

successful if they contest the Will?

Comments by Wills & Estate Specialist – Terry Johansson

So long as they have a sufficiently strong relationship with the father, and are able to prove

financial need they would probably be successful. They should also investigate whether in

fact this Will is valid, as it is quite possible that the deceased father suffered undue influence

or did not have capacity to sign the Will.


Commence a Will Contest Claim: The brother has moral claim but no financial need

Two brothers share equally in their mother’s estate. Each will inherit two properties, they

have their own homes as well. One of the brothers feels badly done by because he has lived

with the family all of his life, and he said he was unable to work, lost any right to earn a

pension, did not earn a salary, and derived no financial benefit by living with his parents. He

wants more than 50%.

Comments by Wills & Estate Specialist – Terry Johansson

Under the Inheritance Act it is essential for any claimant who is contesting a Will to prove

financial need: in this case the brother inherits a very substantial amount from the estate, and

is unlikely to be successful in any claim for further provision. If the brother has contributed

directly to the maintenance and upkeep of any of the properties, he may be able to claim an

equity, which may give him some ownership of the house, and this would be taken into

account and paid to him if he was successful with the claim, before the division is made

under the Will.