Aretha Franklin, the queen of soul, died without a Will on 16 August this year, survived by four adult sons who were to benefit from her estate on intestacy. However, an on and off again partner of Aretha’s is now seeking a slice of her estate!
Similarly, another legendary singer Prince, who died in April 2016, leaving an estate worth about $200 million but no Will. Although, under the relevant intestacy laws of Minnesota, a Court declared that his six siblings were the entitled beneficiaries to his estate given that he was not survived by a partner or children, several people have since made a claim on his estate, including individuals purporting to be his earlier unknown wife, sibling, child and distant relative.
Unfortunately, leaving no Will or an invalid Will can often lead to a will dispute (sometimes referred to as a will contest) which stalls the distribution of the estate and, further, results in the diminution of the estate because of the incurrence of legal fees.
Each state and territory in Australia have different rules in relation to who can contest or bring a claim for further provision from the estate.
For example, in Victoria, to contest an estate (whether there is a valid Will or not), you must be an eligible applicant and be able to demonstrate that you have been left without proper provision by the deceased for your maintenance and support. The class of eligible applicants are as follows:
- Spouse at the time of death.
- A Domestic Partner who may be in a “registered” or an “unregistered” relationship with the deceased as at the date of death.
- Former Spouse or Domestic Partner as at the date of death who was able to take proceedings against the deceased under the Family Law Actand who did not take such proceedings and was prevented by the death of the deceased from taking them, or, who did take proceedings and could not finalise them because of the death of the deceased;
- Carers, but only if they are in a “registered caring relationship” with the deceased as at the date of death as defined under the Family Law Act 1975and that the relationship was not for a “fee or reward”
- Children who are:
- Under 18 years of age; or
- A full-time student aged between 18 years and 25 years; or
- Have a disability (as defined in Section 90 of the Administration and Probate Act 1958);
- A step-child, or adopted child of the deceased, subject to the categories listed above. As of 10 May 2017, children who have been brought into a de facto relationship are now deemed to be “stepchildren” of that relationship for the purposes of identification as an “Eligible Person”.
- Adults but only if they can demonstrate the degree to which he or she is not capable by his or her own reasonable means of adequately providing for his or her own proper maintenance and support;
- An “assumed child”. This is where the child was treated by the deceased as a natural child.
- Grandchildren (including step-grandchildren and adopted grandchildren).
- Member of the household of the deceased who, at the date of the deceased’s death:
- Was a member of the household; or
- Had been in the past but, had it not been for the death of the deceased, would have likely, in the near future, again become a member of the household.
There are ways in which such will dispute claims can be minimised with proper legal advice at the time of preparing your Wills.
If you wish to discuss how you can prepare your estate plan in a way that minimises the incidence of any will dispute, or alternatively, you are seeking advice as to whether you are an eligible applicant for the purposes of contesting a deceased person’s estate, please contact us as we would be happy to assist.