Estate Disputes

Estate disputes come in many forms and arise for a variety of reasons – a falling out between family members, an ambiguous provision in a Will, or simply because a person died without leaving a Will to give direction.

We deal with a range of estate disputes – from challenges to the validity of a Will to making or defending family maintenance claims. We are competent and experienced estate lawyers and can guide you through the complex and often contentious process of dealing with an estate dispute.

Challenging a Will

While family maintenance claims make up a large portion of estate disputes, other disagreements can arise after a person dies. Challenging a Will usually involves a claim that a Will, or part of it, is not valid. Typical grounds for challenging a Will include claims that:

a will-maker was unduly influenced, causing him or her to make a Will that is different to what would otherwise have been made
the Will (or part of it) is a forgery, for example, that the signatures are not authentic, or the Will was not created or authorised by the deceased person
that the testator lacked testamentary capacity to make the Will, for example that the deceased suffered from dementia and was not lucid when his or her Will was made

Making a testator family maintenance claim

A testator family maintenance claim may be made by an eligible person seeking a share or greater share from an estate if it can be shown that a deceased’s Will (or the proposed distribution of an intestate estate) does not make adequate provision for the claimant. The claimant must be an ‘eligible’ person (as prescribed in the relevant state or territory legislation) and various factors will be considered in determining such a claim. A successful claim may result in the terms of a Will or distribution of an intestate estate being altered in favour of the claimant.

In addition to the eligibility criteria, there are time limits within which to bring a family provision claim. If you wish to make a claim, we can assess your circumstances to determine your eligibility and advise on the likely prospects of success.

If you decide to proceed, we will notify the executor of the estate advising them of your intention to make a claim. If necessary, we can also seek orders from the court to prevent the distribution of any of the deceased’s assets until your claim is resolved. This is an important step as it ensures that funds are not distributed and spent by beneficiaries before your claim can be finalised.

We will need to gather evidence to support your claim. This will include details of your relationship with the deceased, your financial situation and needs, and the assets of other beneficiaries.

Once your evidence is ready, the executor is usually contacted for settlement negotiations. This means that your claim might settle before going to court. While this usually saves a lot of time and money, it is important to ensure that an out-of-court settlement provides a fair and reasonable outcome in the circumstances.

If the matter proceeds to court, it is usual practice for the parties to be ordered to attend a mediation. It is only if early settlement discussions and mediation fails that your matter will be heard in court.

In determining whether to make orders in your favour, the court will consider a range of factors including:

your financial situation
the financial situation of other beneficiaries
your future needs
any mental or physical conditions or disabilities
any obligations the deceased owed to you

There are many reasons why a Will might be perceived as unfair. A testator may have failed to update an old Will to take account of changing personal or financial circumstances, or to take into consideration assets that were already gifted to a beneficiary during the testator’s lifetime. Family dynamics can be complex, and we have seen a range of events that have led to a family maintenance claim.

If you need assistance, contact [email protected] or call 03 9546 8155 for expert legal advice.