Legal Services

Estates

Estate planning

Summers Legal has helped many clients with estate planning for over 30 years.

We at Summers Legal want to ensure you control your right to decide how to distribute your assets (estate) or manage your affairs to look after your family interests in the event of an untimely death or extended period of incapacity by ensuring that:

  • you have a valid and up to date Will;
  • you have a proper and effective succession plan;
  • the possibility of any claim against your estate is minimised; and
  • you have powers of attorney, powers of guardianship, health directive and any letter of wishes in the event of your incapacity or death.

Summers Legal provides specialist advice and insight to help you plan your family’s financial future, focusing on practical, tax effective and flexible solutions for your business, family and personal interests.

We provide the right arrangements for your assets, considering various possibilities and avoiding claims, disputes or litigation in the future.  However your assets are held, either personally, jointly, in a trust, company or superannuation fund – locally or overseas, at Summers Legal we endeavour to ensure a smooth transition that provides certainty for your future generations.

We have prepared complex estate and succession plans for many high profile and high net worth individuals.

Our expertise also extends to elder law, which involves assisting seniors in various matters including estate planning, wills, trusts, arrangements for care including issues regarding retirement villages and the application of the Retirement Villages Act 1992, social security and retirement benefits and importantly, protection against elder abuse (physical, emotional and financial).

 

Estate litigation

Contesting a Will

Summers Legal has helped many clients deal with contested Wills and deceased estate issues for over 30 years.

The law recognises that a person (the Will maker) has the right to decide how they wish to distribute their assets (estate), however the law also requires:

  • a valid Will to be in existence; and
  • eligible people to be adequately provided for in a Will.

Where No Valid Will Exists

Contesting a Will, or in the absence of a valid Will, seeking to have a deceased’s estate validly distributed is often complicated and stressful for the people involved.

There are often competing interests between family members, estranged spouses, creditors of the deceased and those who may be entitled and are yet to make a claim.

Under Western Australian law, without a legal Will the deceased has died “intestate” and the estate will be divided according to the rules of intestacy. In this instance the law decides who the beneficiaries are, how the estate will be divided and who is to administer the estate (normally a beneficiary).  The deceased therefore does not have a choice as to who the beneficiaries of their estate are and who will administer their estate.

When There is a Valid Will

A grant of probate (proving the Will) is obtained when the executor named in the Will makes the application to prove and register a Will and then successfully obtains a formal order from the Supreme Court of Western Australia to administer the deceased estate. In contrast, letters of administration (with the Will annexed) is a similar document, but is the document obtained when someone other than an executor named in the Will makes the application (for example if the named executor(s) has deceased or is unable or unwilling to act).

Summers Legal has the understanding and expertise to assist you with issues involving deceased estates, including obtaining probate or letters of administration, complex or simple estate administration and dealing with contested or disputed wills.

Making a claim against a deceased estate, contesting a Will or its administration

Whilst the circumstances of the case and the type of claim being made often depends who is able to make a claim against a Will or an estate, generally the following categories of persons can make a claim against a deceased estate and/or Will:

  • Wife, husband or defacto partner of the deceased.
  • Child, step-child or adopted child of the deceased.
  • Grandchild of the deceased (in certain circumstances).
  • A person who was, in some way, dependant upon the deceased.
  • A person who has acted as a personal carer of the deceased.
  • A creditor of the deceased.
  • A beneficiary under a prior will (if there is a question as to the validity of a later will).

There are many reasons why an estate and/or a Will can be contested including (but not limited to):

  • an allegation the will maker lacked capacity for example due to illness or medication at the time the will was made;
  • there are other issues with respect to the validity of the will (undated, issues with signatures, issues with witnesses, original will cannot be found, damage to the Will amongst other things);
  • a claim that the will maker was influenced unfairly or under duress by a beneficiary or someone who stood to benefit from distribution of the estate; or
  • a belief by an eligible person that the terms of a Will do not adequately provide for that person.

There are often time limits associated with making a claim against a Will, particularly where a party claims that they have not been adequately provided for under a Will.  In this instance, claims must be brought within 6 months of Probate being obtained to avoid leave being required from the Supreme Court of WA.

At Summers Legal we provide comprehensive and practical advice on challenging or defending Wills, obtaining grants of probate and administration and finding solutions to claims and disputes in an attempt to minimise the stress and costs to our clients.  We offer a personal, tailored approach, appreciating that estate claims are often emotional and highly sensitive.

McLane Edinger leads the Summers Legal contested Will and estate disputes teams and has significant expertise in this area.  McLane has acted for clients in all capacities in deceased estate matters, including applicants, beneficiaries, executors and administrators in the Supreme Court of WA and the Court of Appeal.

Please contact the Team at Summers Legal today.