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Challenging a Will or EPOA – How much time do I have?

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There aren’t many advantages in being a lawyer.

Before you deluge me with ribald sarcasm, hear me out.

One advantage is that we probably know more about the law than you do. We tend to think of the law, not usually as an ass, but more as a collection of ‘do’s’ and ‘don’t’s’ about how we live our lives and interact with other people. But there is a hidden sting in many laws which lawyers are particularly trained to be aware of – time.

Time is a pervading feature of many things in life. It can be:

  • Discretionary
    • Such as doing a Will – aka ‘take all the time you like’.
  • Desirable
    • Such as the due date for payment of your lawyer’s bill – aka ‘soon enough is good enough.
  • Definitive
    • Such as when you must start legal proceedings – aka ‘the quick and the dead’

Time can be even more powerful than just the due date for payment of a bill. It can dramatically affect our legal rights. It can turn a very good case into a very bad one.

The law is strewn not just with law but with definitive time limits, namely, if you want to pursue some legal action or right, you must do so within a certain time period. Ignoring these time limits or worse, not knowing them, can be calamitous.

Here are two examples from Queensland of where people are failing and falling down:

Challenging a Will

  • The law says if you are going to challenge a Will because you’ve been left out or you think you’re not getting enough, you must start a legal proceeding within nine months from the death of a person.
  • If you don’t start it within that period you are, as the law says, ‘stuffed’ unless you try to get an extension of time and for that, you would need some very good reasons

Challenging an Enduring Power of Attorney

  • There is another time limit which is well hidden but deadly on your rights.
  • One of the increasing concerns of family members relates to the dubious financial activities of a family member who has been appointed as a mum or dad’s Enduring Power of Attorney.
  • One common technique is for them to raid and drain a parent’s bank account while the parent is still alive using their EPOA and no one finds out until the parent has died.
  • The law allows the estate of a deceased person to take action against that EPOA to recover any monies taken and pay them back into the estate.
  • Here’s the sting – the time limit to take such action is very short – 6 months from the parent’s death.

The law has many other time limits on many things. Trouble is not many people know this and they only find out when they find out after the time limit has expired.

Just another reason to accept that we all have different skills and abilities across the broad spectrum of life and work. Lawyers have a particular skill that you don’t have, and they don’t have the particular skill that you have.

Horses for courses, as they say. It never hurts to ask a specialised horse if only to find out what you don’t know. Unless, of course, you know everything.

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