Defending Will Contest Claims

Estrangement is relevant to “moral duty”.

Estrangement is not uncommon between a parent and adult child and on its own, does not ordinarily prevent the adult child from making a successful claim.

However, in certain circumstances, such as where the adult child has treated their parent callously by withholding, without proper justification, support and love in their parent's declining years, or does so with hostility, the deceased is arguably entitled to make no provision for that adult child.

This involves examination of the nature/quality of the relationship between the deceased and each beneficiary.

Matters such as what level of love, support, assistance and care each beneficiary provided the deceased especially during any declining years will potentially assist in defending the claim.

The Court must have regard to a deceased's testamentary intentions.

The defence to a claim will be strengthened if the reasons set out are reasonably based in setting out for example callous or hostile conduct of the claimant toward the deceased.

The matter should be carefully examined.

The answer is yes.

As a general principle the smaller the value of the estate, the more difficult for a claimant to get provision of substance.

Getting estate assets such as real estate accurately valued should be completed.

Moreover, if the nature of the estate comprises real estate (a house) and not much more, that fact may make it more difficult to claim provision especially in circumstances where one or more of the beneficiaries provided for in the Will/Estate have no house of their own and intend to live in the deceased's house.

This is a critical issue to defending a claim.

The question involves an examination of the claimant's asset and income position and whether they are adequate to meet their current and likely future financial needs.

It is important to carefully review claimant evidence and obtain relevant documents such as real estate title searches, value appraisals, current bank and superannuation balance statements, tax returns/assessment notice and current liabilities (mortgage and credit card statements) to test the financial need assertions of the claimant.

The weaker the claimant's financial need, the stronger the defence to the provision claim.

The competing financial need of each beneficiary is an important consideration in potentially assisting the defence of the claim and requires detailed instructions and assembling of relevant evidence.

The defence to a claim will be strengthened if the evidence shows some or all of the beneficiaries are in financial need and any provision of substance to a claimant would have a deleterious impact on the beneficiaries' financial circumstances.

The issue should be examined and if the evidence is the deceased provided the claimant benefits of substance, it is a potential factor in reducing the claim value.

The answer is yes.

Once a proper assessment of a claim is made, an Offer of Compromise under the Court Rules detailing a settlement amount can be served. If the Offer is not accepted and the claimant does no better than the offer amount on case completion at trial, the estate will not have to pay the claimant's allowable costs from the Offer expiry date.

A claimant's allowable costs to case completion at trial may be in the range of $40,000-$60,000 so costs protection to the estate is an important issue.