Estate Disputes

Estate Disputes

Disputes over Wills or deceased estates come in all shapes and sizes and are generally complex and emotionally charged. We provide expert advice on the legal process involved in disputing an estate and the potential outcomes of pursuing or defending legal action. While many disputes are resolved through mediation or negotiation, in some cases it may be necessary to ask a court to determine a matter. With significant expertise in this area, we have a track record of obtaining excellent results for our clients.

Challenging the Validity of a Will

A Will may be challenged on the basis that the person who made it lacked testamentary capacity, that is, they did not understand the nature and effect of what they were doing. Alternatively, a Will challenge may concern allegations of fraud or undue influence by another person. These disputes typically occur when a family member has concerns that the Will does not reflect the true wishes of the deceased.

Executor Disputes

Challenges to the appointment of an executor can arise when there are concerns about their suitability for the role, or if there are conflicts of interest. Executors have a significant degree of power over a deceased estate, from making decisions about the funeral to managing the deceased’s property. Not surprisingly, when an executor exercises their power in a way that upsets a beneficiary, this can result in tension.

Similarly, many will-makers appoint more than one executor, which is good practice, as it provides a failsafe if one of the executors dies before the will-maker or is unable or unwilling to act when the time comes. However, when executors are asked to work together to administer an estate, this can lead to disputes and conflicts between the executors themselves. In such cases, it is important to work with an experienced estate disputes lawyer who can advise on the process for challenging the appointment of an executor and assist in resolving the matter and/or putting forward an alternative candidate.

Family Provision Claims

Possibly, the most common types of estate disputes are family provision claims. If an eligible person has been left out of a Will or feels they did not receive a fair share from a deceased estate, they may apply to the Supreme Court to have the provisions of the Will changed.

Eligibility rules for making a family provision claim vary across different Australian jurisdictions and strict time limits apply to make a claim. Accordingly, it is important to seek legal advice as soon as possible when making or defending such a claim.

In Queensland, an eligible person generally includes a spouse or de facto partner of the deceased; a child (including a stepchild and adopted child); and certain other categories of persons who were dependent on the deceased (in specified circumstances).

Amongst other things, a claimant must show that the deceased failed to make adequate provision for their maintenance and support. In determining a claim, a court may consider a range of factors, for example:

  • the financial position of the claimant
  • the circumstances, financial position and needs of other beneficiaries
  • the relationship between the deceased person and the claimant
  • the age and any physical, mental, or intellectual disability of the claimant or other beneficiaries of the estate
  • the size and nature of the estate
  • the extent to which the claimant has already been provided for under the Will, if relevant
  • any benefits previously given to the claimant or a beneficiary of the estate

Ambiguous Wills

Disputes sometimes arise over the interpretation of a Will when there is ambiguity or confusion about the meaning of certain provisions. This can occur if a Will is poorly drafted or contains conflicting provisions. An unclear Will is sometimes the result of the person making the Will using a do-it-yourself will kit.

Intestate Estates

There is little doubt that when someone dies without a valid Will – that is, they die intestate – it automatically creates more stress for the deceased’s family. From a practical point of view, there is no guidance from the deceased about their wishes for their funeral or the distribution of their property. In that case, a member of the family may need to apply to the Supreme Court for permission to administer the estate. In addition, the distribution of the estate will be directed by the rules set out in law which may mean that people who were important to the deceased miss out. This can lead to a range of disputes and claims.

If you need assistance from an experienced results-driven professional, contact [email protected] or call 07 3040 5885.