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1300 COMLAW (266 529)

02 4704 9991

Suite 11, 354-360 High Street, Penrith NSW 2750
PO Box 1835 PENRITH NSW 2751

Death

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Problems Arising Out Of Disputed Wills

The legal area of Wills and Estates is fraught with difficulty. The main reason is that disputes often arise as to the contents of deceased persons’ Wills, and the people who wrote the Wills are not around to explain what they intended and the reasons why they did what they did when drafting their Will.

The most common forms of dispute regarding Wills arise out of the following:

  1. Family provision claims – also known as contesting a person’s Will.
  2. Testamentary capacity cases – where someone is arguing that the deceased lacked the mental capacity to make a Will.
  3. Constructions suits – where the terms of the Will are ambiguous or confusing and the Court’s assistance is required to interpret them.

Another common type of dispute that arises in the context of deceased Estates is that of constructive trust or resulting trust. This usually occurs where a deceased person has promised someone a portion of their assets, sometimes in return for things like domestic assistance and care, but this promise is not contained in their Will and therefore there is no record of it. The law says that people who have been made such promises have the right to enforce these promises if they can be proven.

This week we attended a mediation in a deceased Estate matter where we were able to secure an award for our client in the hundreds of thousands of dollars. This dispute involved a deceased person who left a Will leaving his entire Estate to a friend and some charities and leaving nothing to his three adult sons.

If the matter had have proceeded to a hearing in the Supreme Court of NSW because no settlement could be reached, the legal fees would have most likely exceeded $250,000. This is money that would have been taken directly from the pockets of beneficiaries to pay for Lawyers and Barristers.

We were able to assist in avoiding these costs and putting more money in our client’s pocket by coming to a mutually beneficial settlement.

These types of family disputes are not often motivated simply by financial gain. There are many personal and emotional issues attached that it takes an experienced Lawyer to navigate.

Contact us today if you are involved in a some type of Estate dispute and we will tell you if we can help you free of charge.

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What does a coroner do?

When reporting on legal cases, the media often refers to the Coroner or coronial inquests.

The purpose of this article is to provide you with a brief understanding of what a Coroner does, and how they fit into the legal system.

The role of the Coroner is to investigate instances of death in circumstances where the death of a person is not immediately explainable. The Coroner will conduct investigations to determine how a deceased person came to die, including the circumstances surrounding their death, and also investigate the cause of fires and explosions. The Coroner is essentially a fact finder whose role is to find out the circumstances of these types of events as opposed to determining a person’s guilt or laying criminal charges.

Doctors, emergency service workers, police and other healthcare professionals are obliged to report deaths to the Coroner if they occur in the following circumstances:

  • Sudden deaths and deaths with an unknown cause.
  • Violent or unnatural death.
  • Death resulting from accident or injury.
  • The death of a person who had not been attended to by a doctor in the previous six months.
  • Deaths that occur in custody or in the course of a police operation.
  • Deaths where the identity of the deceased person is not known.
  • Deaths of children who are known to the Department of Family & Community Services.

One of the most common scenarios where a coronial inquest occurs is in the case of missing persons.

This occurs when the police officer in charge of a missing persons investigation is satisfied that they have pursued all avenues of investigation and no further enquiries can be made by them as to whether or not a missing person is alive or dead.

The Coroner will then assess all of the factual information in relation to the missing person, and make a determination as to whether or not they believe the missing person is alive or dead. If the Coroner finds that the most likely scenario is that the missing person is deceased, then the investigation will be closed unless new evidence becomes available.

A Coroner cannot find someone guilty of a crime. The Coroner can however make recommendations to governments and other agencies in relation to matters of public health and safety.

A Coroner can also refer a matter to the Director of Public Prosecutions if they form they opinion that a person involved in the coronial inquest has committed an indictable offence in connection with the death. It is then up to the Director of Public Prosecutions whether or not charges will be laid against the said person.