Estate Disputes

In addition to Family Provision Act claims which are brought when an individual believes they have either been unfairly excluded beneficiary of a Will or that any provision that has been made for them is inadequate, a range of other estate litigation and challenges to a Will can be brought by both beneficiaries and other interested parties.

If you are a beneficiary or an Executor tasked with distributing an estate that becomes disputed this can be a very challenging and stressful time. Our experienced and caring lawyers are able to advise and guide you in relation to a broad range of estate litigation and to help you achieve, as far as possible, a timely and satisfactory resolution of any dispute.

Challenges to the validity of a Will

The main grounds for disputing the validity of a Will that can result in litigation are:

  • Claims of undue influence – Where one party claims that another party (usually a beneficiary) exerted an unreasonable level of influence over the deceased which resulted in them preparing their Will in a certain way including leaving assets to the individual who exerted the undue influence. For example, where the deceased was elderly and infirm and leaves a considerable portion (or all) their assets to a paid carer excluding all family members, the children of the deceased may feel that the carer exerted an undue level of influence which resulted in the Will being drawn in their favour ;
  • Allegations of fraud and/or allegations that the Will (or some part of it) is a forgery – Examples of these types of disputes include where a question is raised as to whether the signatures on the Will are in fact real or are forgeries, particularly the deceased’s signature and where a document is alleged not to have been created or authorised by the deceased but by another person or group of persons; and
  • Claims that the deceased lacked the necessary mental capacity (usually described as testamentary capacity) to make the Will at the time it was executed. These types of claims often arise when the deceased was elderly and sick for long periods of time or suffered from dementia or some other form of loss of memory.

Other types of estate litigation

In addition to disputes over the validity of a Will, other types of estate litigation include disputes between executors, beneficiaries and even other interested parties (for example the parents of child beneficiaries) over matters such as:

  • Claims the Attorney has disposed of assets prior to death or their conduct as an Attorney prior to death;
  • The interpretation of the terms of the Will;
  • Whether a Will contains an obvious error or mistake. For example, if the Will refers to “my son John” when in fact the deceased only had a daughter named Jane and no other children;
  • Does the document comply with the formal requirements for a Will i.e. note, text message, recording etc.;
  • Disputes about whether an executor should be allowed to act in that role;
  • Disputes between beneficiaries as to how the estate should be administered. These types of disputes often arise when one beneficiary is also the executor of the estate and other beneficiaries have not been appointed as joint executors under the Will and do agree with how the executor is distributing the assets of the estate;
  • Where one or more of the beneficiaries would like the executor to be removed and replaced by another party;
  • Appointing an interim Administrator to manage the estate whilst the estate is litigated; and
  • Where one of the beneficiaries is said to have caused or been unlawfully involved in the deceased’s death. For example, in cases where a parent has left their estate to their children in equal shares but one of those children has been charged with an offence in connection with the parent’s death.

Estate litigation is often highly emotional and tenaciously fought for a number of reasons, not the least of which is that the parties to a dispute often find themselves in a vulnerable and distressed state before the dispute even arises.

Family circumstances and histories are also often very complicated and the disputes that arise in the context of a deceased estate may have been years or even generations in the making. Given the potential ramifications on both a financial and personal level it is important that you engage lawyers that you can trust and who are experienced in working with parties in such fraught circumstances.

If you find yourself or a loved one in this position please contact us to discuss your matter as soon as possible. We are here to help and look forward to working with you to resolve any dispute as efficiently and cost effectively as possible.

Key Contacts

Jacqui Lee Long
Director
Susan Henson
Senior Lawyer
Kerryn Earle
Paralegal