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.
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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.
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