When someone passes away, disputes about their Will or estate can create significant emotional and financial stress for family members and beneficiaries.
In Australia, there are several legal options available for people who believe a Will is invalid, unfair, or does not properly reflect their legal entitlements. These options include challenging the validity of a Will, making a family provision claim, or raising concerns about the actions of an executor or trustee.
Understanding why estate disputes happen and how the law addresses them can help you make informed decisions during a difficult time. If you are involved in a potential dispute, you should obtain advice from an experienced wills and estates lawyer who can assess your circumstances.
Common Ways to Challenge a Will or Estate
There are several ways a person may challenge a Will or dispute the administration of an estate.
| Type of Estate Dispute | What It Involves |
|---|---|
| Will validity challenge | Questioning whether the Will was legally valid, including concerns about capacity, pressure or signing requirements. |
| Family provision claim | Seeking further provision from an estate where an eligible person believes they were not adequately provided for. |
| Executor dispute | Raising concerns about how an executor is managing or distributing estate assets. |
| Beneficiary dispute | Resolving disagreements about entitlement, interpretation or distribution of estate assets. |
Challenging the Validity of a Will
One way to dispute a Will is to challenge whether it is legally valid.
A person may question the validity of a Will if there are concerns about the circumstances in which it was created or signed.
Common reasons for challenging a Will include:
- The deceased did not have the required testamentary capacity when making the Will.
- The deceased did not understand the nature and effect of the Will.
- The deceased was pressured or influenced by another person.
- The Will did not meet the required legal formalities.
Testamentary Capacity and Wills
Testamentary capacity refers to a person’s ability to understand what they are doing when they make a Will.
A person making a Will must generally understand:
- That they are creating a legal document that deals with their assets after death.
- The nature and extent of their assets.
- The people who may have a claim to their estate.
- The consequences of including or excluding beneficiaries.
Concerns about capacity often arise where a person experienced cognitive decline, illness or other circumstances affecting their decision-making ability.
Undue Influence and Pressure
A Will may also be challenged if there is evidence that another person pressured or influenced the deceased when making decisions about their estate.
This may occur where someone uses their relationship with the deceased to encourage changes to the Will that do not reflect the deceased’s true intentions.
Family Provision Claims in NSW
A family provision claim allows certain eligible people to ask the court for further provision from a deceased estate.
These claims usually arise where someone believes the Will does not provide adequate financial support for their circumstances.
In NSW, family provision claims are governed by the Succession Act 2006 (NSW).
Who Can Make a Family Provision Claim?
Eligibility depends on the person’s relationship with the deceased and their circumstances.
Potential eligible persons may include:
- A spouse or former spouse.
- A de facto partner.
- A child of the deceased.
- Someone who was dependent on the deceased.
- Another person with a close relationship to the deceased who meets the legal requirements.
The court considers each case individually. Being related to someone does not automatically guarantee a larger share of an estate.
When Are Family Provision Claims Successful?
A successful claim usually requires the applicant to show that the deceased’s estate failed to provide adequately for their proper maintenance, education or advancement in life.
The court may consider factors such as:
- The applicant’s financial circumstances.
- The relationship between the applicant and deceased.
- The size and nature of the estate.
- The needs and circumstances of other beneficiaries.
- Any contributions made by the applicant to the deceased.
Why Do Estate Disputes Arise?
Estate disputes often occur because of a combination of legal, financial and personal factors.
| Common Cause | Why It Leads to Disputes |
|---|---|
| Family conflict | Existing disagreements or strained relationships may become more significant after someone dies. |
| Blended families | Different family relationships can create competing expectations about inheritance. |
| Outdated Wills | A Will may no longer reflect changes such as marriage, divorce, births or new assets. |
| Unclear wording | Ambiguous terms can create disagreements between beneficiaries. |
| Executor concerns | Beneficiaries may dispute how an executor manages estate assets. |
Executor and Trustee Disputes
Executors and trustees have important responsibilities when administering an estate.
Disputes may arise if beneficiaries believe an executor has:
- Failed to properly manage estate assets.
- Delayed administration without reasonable explanation.
- Failed to communicate with beneficiaries.
- Acted with a conflict of interest.
- Misused estate funds.
Where concerns arise about an executor’s conduct, legal advice can help determine the appropriate steps to resolve the issue.
How to Reduce the Risk of Estate Disputes
While disputes cannot always be avoided, careful estate planning can significantly reduce the risk of conflict.
Create a Clear and Valid Will
A professionally prepared Will can help ensure your wishes are clearly recorded and legally effective.
An experienced estate lawyer can help identify potential issues and explain options for reducing the risk of future disputes.
Review Your Will Regularly
Your Will should reflect your current circumstances.
You should review your Will after major life events, including:
- Marriage or separation.
- Divorce.
- The birth of children or grandchildren.
- Significant changes to your assets.
- The death of a beneficiary or executor.
Communicate Your Intentions
Clear communication with family members can help manage expectations and reduce misunderstandings.
While you are not required to explain every decision in your Will, discussing important estate planning decisions may prevent future conflict.
Use Clear Language
A Will should clearly explain how assets should be distributed.
Unclear instructions or vague wording can create disagreements between beneficiaries and increase the likelihood of a dispute.
How Are Estate Disputes Resolved?
Many estate disputes are resolved through negotiation or mediation rather than a court hearing.
Alternative dispute resolution can provide a more efficient and cost-effective way for parties to reach an agreement.
If an agreement cannot be reached, court proceedings may be required.
The Supreme Court of NSW deals with many probate and estate-related matters, including disputes involving deceased estates.
Frequently Asked Questions About Will and Estate Disputes
Can I contest a Will in NSW?
Yes. A person may be able to challenge a Will in NSW if there are valid legal grounds, such as concerns about capacity, undue influence or lack of proper execution.
How long do I have to contest a Will in NSW?
Time limits apply to some estate claims, including family provision claims. The timeframe depends on the type of claim and the circumstances involved.
Can a child contest a parent’s Will?
A child may be eligible to make a family provision claim if they believe they were not adequately provided for. However, the outcome depends on the circumstances of the estate and the individual claim.
Do all estate disputes go to court?
No. Many disputes are resolved through negotiation or mediation before reaching court.
Getting Advice About a Will or Estate Dispute
Disputing a Will or estate can be complex and emotionally challenging. Understanding your legal options early can help you make informed decisions.
An experienced estate lawyer can help you understand whether you have grounds to challenge a Will, make a family provision claim, or address concerns about estate administration.
This information is general only and you should obtain professional advice relevant to your circumstances before taking any course of action.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 4987 3344 or email [email protected].