Queries to Challenge Beneficiary on Will?

[Joanna Barry]

My father recently passed away from brain cancer. He married a woman on his death bed, and she become power of attorney and the will was created shortly before his death. The rest of his family is going to contest the will based on the fact that he was not of sound mind during the appointing of power of attorney, his wedding or the writing of his will. We are waiting for the will to be read, so far it has been 3 weeks.

1. Does being Power of Attorney automatically make her Executor of will?

2. Is there a time limit in which she must notify us of the wills contents?

3. If we contact a solicitor or the courts to obtain the will, is this costly?

3. What happens if she spends all of the inheritance before we get a chance to contest the will?

4. Are there any ways in which a beneficiary that is an executor can manipulate the will or commit fraud?

5. What are some reasons she may be stalling the process?

6. When lawyers advertise no win no fee, do they charge quite a bit if there is a win?

Help will be greatly appreciated!

 

[Tim W]

1. Does being Power of Attorney automatically make her Executor of the will?

In fact, Power of Attorney expires at the death of the donor.
And no, the POA holder does not automatically become the executor

2. Is there a time limit in which she must notify us of the wills contents?

Potential heirs can often see the will regardless. Have a read of this.

3. If we contact a solicitor or the courts to obtain the will, is this costly?

That depends on the complexity of the work, the size of the estate, and the legal questions involved.

3. What happens if she spends all of the inheritance before we get a chance to contest the will?

Subject to many variables, you may have grounds for an action to recover the money from her.

4. Are there any ways in which a beneficiary that is an executor can manipulate the will or commit fraud?

Yes. Lots. But if the rest of the family is switched on and gets good legal advice early, you can risk manage a fair bit of it, a fair bit of the time.

5. What are some reasons she may be stalling the process?

Greed, greed, greed, and greed. family opwer plays, spite, and greed.

6. When lawyers advertise NO WIN NO FEE, do they charge quite a bit if there is a win?

This is not work that normally attracts contingent fees. In other words, you'll be lucky to find anyone who will do it for "No Win No Fee"

 

[Hayder Shkara]

Hi Joanna,

Firstly, what state are you in?

Tim's answers above were great. The only thing I would comment on is your question 3 - What happens if she spends all the inheritance?

Firstly, you don't know what is contained in the will. Potentially everything he owned could have been passed on to you. So right now the most important thing is seeing a copy of the will.

Secondly, if you are left out of the will, there are a number of things you could contest. Ideally, you would want to challenge the will before the executor of the will gets control of the estate and starts spending the money.

There are a lot of variables in this situation. I'm happy to have a chat for free if you want to call me on 02 8089 3148.

 

[Tim W]

....right now the most important thing is seeing a copy of the will.

Agreed.

 

[Joanna Barry]

Hi Joanna,

Firstly, what state are you in?

Tim's answers above were great. The only thing I would comment on is your question 3 - What happens if she spends all the inheritance?

Firstly, you don't know what is contained in the will. Potentially everything he owned could have been passed on to you. So right now the most important thing is seeing a copy of the will.

Secondly, if you are left out of the will, there are a number of things you could contest. Ideally, you would want to challenge the will before the executor of the will gets control of the estate and starts spending the money.

There are a lot of variables in this situation. I'm happy to have a chat for free if you want to call me on 02 8089 3148.

Hi Joanna,

Firstly, what state are you in?

Tim's answers above were great. The only thing I would comment on is your question 3 - What happens if she spends all the inheritance?

Firstly, you don't know what is contained in the will. Potentially everything he owned could have been passed on to you. So right now the most important thing is seeing a copy of the will.

Secondly, if you are left out of the will, there are a number of things you could contest. Ideally, you would want to challenge the will before the executor of the will gets control of the estate and starts spending the money.

There are a lot of variables in this situation. I'm happy to have a chat for free if you want to call me on 02 8089 3148.

Hi Joanna,

Hi, I am in QLD. We are pretty sure of approximates in the will and want to prepare to challenge it. we are currently trying to obtain a copy of the will but the executor (the wife) says a solicitor will contact us "in due course". We have told her that she needs to provide solicitor details or she is breaking the law - is that true? is there a time frame she legally has to provide this by? We think she is stalling, so that she can get the probate first, and spend all the money asap. How quickly can she get a probate and access the funds? If she continues to stall, and we choose to get a solicitor to obtain the will, would that be an upfront charge, or can it be included in the whole challenging of the will case? If she has been spending his money with his cards since his death, we can use that against her right?

 

[Joanna Barry]

Is there a way to stop her from getting that probate so she can't spend it all before the court case?

 

[Joanna Barry]

Is there a way to stop her from getting that probate so she can't spend it all before the court case?

Also... If this will is made invalid due to him being not of sane mind, will his prior will be used? If so, that will did not take into consideration money and assets acquired in the past 10 years and he had left a lot of money to an ex partner.. so how would that work?

 

[Hayder Shkara]

Is there a way to stop her from getting that probate so she can't spend it all before the court case?

Yes. Before probate is granted - she must provide notice that she is applying for Probate. Anyone that wants to contest this has the ability to do so once she puts up this notice. In NSW you have 28 days. I believe in QLD its 14 days.

Also... If this will is made invalid due to him being not of sane mind, will his prior will be used?

Potentially.

If so, that will did not take into consideration money and assets acquired in the past 10 years and he had left a lot of money to an ex partner.. so how would that work?

That will is then the valid will. If you are not provided for, you will have to contest it based on a family provision application.

 

[Joanna Barry]

Yes. Before probate is granted - she must provide notice that she is applying for Probate. Anyone that wants to contest this has the ability to do so once she puts up this notice. In NSW you have 28 days. I believe in QLD its 14 days.



Potentially.



That will is then the valid will. If you are not provided for, you will have to contest it based on a family provision application.

So we need to contest two wills? The last one on the grounds of not sound mind, and the second last one on the grounds of family provision?

 

[Hayder Shkara]

Potentially. Or you could argue family provision on the first one.