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Family Forum: Disputing a Will

Are assets protected while a will is in dispute?

QUESTION:

I was abused by my father while in my teens and became distant from him. We would make contact every now and then, but it was never the same. My father recently passed away and left me completely out of his Will. He made my brother the executor and left everything to him. My brother immediately moved into dad’s home. While I pay exorbitant rent in the city, my brother lives like a King and lives rent free. I’m contesting the Will, but I would like to know, can my brother live rent free and use dad’s car etc as he chooses? How do I know if he’s selling things, as he won’t let me near the house.

ANSWER:

The death of a family member is often a time where old issues rise to the surface. People can feel that the Will of the deceased is unfair and family members can behave inappropriately.

As your father died with a Will, and on the understanding that his house was located in South Australia, then it will be necessary for the executor of his estate to obtain a Grant of Probate from the Court. You may be entitled to make a claim under the Inheritance (Family Provision) Act. You should obtain advice urgently from a lawyer specialising in disputed estates to discuss any potential claim that you might have, the strict time limits that apply and any issues that there might be in relation whether you father’s Will was valid. Your lawyer will also be able to give you advice on the effect (if any) of your estrangement from you father on any potential claim that you might have.

When assessing whether you have a claim against your father’s estate, your lawyer will consider whether “adequate provision” has been made for your education, maintenance and “advancement in life”. When giving you advice, your lawyer will take into account your personal circumstances, including your living arrangements, any other beneficiaries’ personal circumstances (including your brother) and the size of your father’s estate, amongst other factors.

Your brother as executor of the estate is obliged to keep proper records of his dealings with assets of the estate until the assets are distributed to the beneficiary or beneficiaries. Your lawyer will also be able to give you advice regarding the manner in which your brother must be put on notice of your potential claim to preserve the estate. If Probate has been granted and your brother has not been put on notice there is a risk that he could start selling or otherwise dealing with the assets of the estate. It is therefore extremely important that you obtain legal advice as soon as possible. If you need assistance in finding a lawyer, then the Legal Service Commission (1300 366 424) or the Law Society of South Australia Referral Service (8229 0200) may be able to assist you.

Submit Your Questions

Family Forum is a panel of general practitioners, medical specialists, lawyers, therapeutic and financial counsellors to discuss each letter before the appropriate professional answers it. The panel is appointed by Relationships Australia SA.

Have you got a question you’d like us to tackle?

Fill out the form below or send questions to Family Forum, The Advertiser, 31 Waymouth St, Adelaide 5000.

We treat communications in strict confidence except when the law demands otherwise, as in child abuse.

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