Estate Litigation

What are Estate Disputes?

Estate disputes arise when two or more parties disagree about the administration of a deceased estate (property and assets that a deceased person has left behind).

Estates are frequently challenged for a variety of reasons. Examples could range from someone feeling like they have not been adequately provided for, to someone doubting the validity of a will.

Conflicts in estate matters also commonly arise at any time during the estate administration process, from the initial determination of whether or not the deceased has made a valid will to the final distribution of the balance of the estate – and at any stage in between. In an estate litigation dispute, the Courts will consider the individual circumstances and applicable evidence as it applies to each separate application.

The Court has discretion to vary the provisions of a will. However, it is important to note that just because a party may consider the outcome of a particular will as unfair, it does not necessarily mean that the Courts will agree to amend the provisions of the will. Further, there is no set formula for any amount of entitlement that a person should receive from an estate, irrespective of the particular relationship that person had with the deceased.

Why do people dispute Wills?

The two most commonly contested matters in relation to wills are:

  • The validity of the will; and
  • The adequacy of provisions to family members (commonly referred to as a Family Provision Claim).

The motivations behind why a will is contested may vary greatly depending on the provisions of each individual will. Some examples of common reasons why a will may be contested include questions relating to:

  • Whether the will in question is the most updated version of the will;
  • Whether the will in question may not be the most accurate reflection of the deceased’s wishes;
  • Which (if any) solicitor and/or accountant should be appointed to act on behalf of the executors;
  • The value of estate assets;
  • Who should be engaged to value the assets;
  • Reimbursements; and
  • Accusations of conflicts of interest.

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If you have any questions regarding any of our services, or just need a question answered about an estate dispute, then make an enquiry and our Litigation team will be in touch with you as soon as possible.

In order to challenge the validity of a will, one of the following grounds must be established:

  • The testator lacked mental capacity;
  • The testator lacked knowledge and approval of the contents of the will;
  • The will was subject to undue influence; or
  • The will was subject to fraud or forgery.

Estate disputes can also arise in circumstances where someone considers that the deceased did not make adequate provisions in their will for a particular person (e.g. a spouse or child).

Some factors that the courts may consider in determining whether or not adequate provisions have been made for a particular person in relation to a deceased estate include:

  1. Competing claims of other eligible persons or beneficiaries;
  2. Whether any provisions that have already been received by the applicant are adequate for the applicant’s proper maintenance, education, and advancement in life;
  3. The nature of the applicant’s relationship with the deceased person;
  4. The duration of the applicant’s relationship with the deceased person;
  5. The applicant’s financial resources and earning capacity;
  6. The size of the estate;
  7. Whether a promise was made to the applicant that they would be left a specific part of the estate which was not reflected in the will; or
  8. There was a clear mistake or error in the will.

It is important to note that not everyone is entitled to dispute a will. A person entitled to commence proceedings will generally be one of the following:

  • The deceased’s spouse;
  • A child of the deceased;
  • A dependant of the deceased; or
  • Another beneficiary of the will.

If you are an entitled person listed above and you are doubting the validity of a will, or you believe that you have received inadequate provisions from a deceased estate, you may be able to contest the will. If the courts find in your favour, they may vary the provisions of the will or order the redistribution of the estate.

If you are the executor of a will, it is your legal responsibility to defend the claim and uphold the interests of the testator. This forms part of the general duty of an executor to exercise the role as executor with diligence and in accordance with the law. If you are a beneficiary of a will, you may also be an appropriate party to defend the provisions of the will in limited circumstances.

In essence, if the validity of a will is challenged, the executor will need to prove the validity of the will by disproving the grounds of invalidity put forth by the challenger. On the other hand, if the will is contested on a Family Law Provision basis, the executor must act reasonably to seek to negotiate and compromise where this is possible and appropriate, or otherwise defend the claim by placing any evidence before the court that has a relevance on the claim in order to enable the court to make a decision as to the fair distribution of the estate.

If you are an executor of a will and find yourself in a situation where the will has been contested, it is important that you seek legal advice immediately in order to ensure you comply with your legal obligations at all times and do not risk being held personally liable for any deficiencies or discrepancies between the provisions of the will and the claim made by the person contesting the will.

For legal assistance

Whether you are intending to contest a will, or you are an executor wishing to defend a will, Gibbs Wright Litigation Lawyers can provide support and advice to ensure your rights are sufficiently protected at all times.

Whether you are seeking advice regarding your rights and responsibilities in relation to the will, or you require someone to negotiate and appear in court on your behalf, we are here to assist you.

Contact us about your estate dispute

We offer an initial, no cost, obligation-free consultation to assess the strength of your case.