Estate disputes vary in substance, but most are complex and highly emotional for those involved. Family dynamics can be complicated and the disputes that arise concerning a deceased estate may have been years or generations in the making. If you have been unexpectedly left out of a Will, or are an executor dealing with a family provision claim or dispute, we can help.

Family maintenance claims (family provision claims)

It may come as a surprise to be left out of a Will or with a lesser inheritance than you expected, but there are many reasons why this could have happened. Regardless of the circumstances, you may be entitled to pursue a family maintenance claim.

A family maintenance claim involves an ‘eligible person’ making a claim on the estate of a deceased person. If successful, the terms of a Will (or proposed distribution of an intestate estate) may be altered in favour of the applicant. A claim has the potential of leaving less inheritance for other beneficiaries and, accordingly, is often strongly contested.

The definition of an ‘eligible person’ varies between Australian jurisdictions. Your lawyer can advise whether you are eligible based on your relationship with the deceased, the relevant circumstances, and the applicable law in your state or territory. Depending on the circumstances, an eligible person may include current spouses and domestic partners, children (including stepchildren), former spouses/domestic partners, grandchildren, and certain other persons as defined by the legislation. Time limits for bringing a claim also apply, so it is important to obtain legal advice quickly.

An applicant must be able to show that the deceased person failed to make adequate and proper provision for his or her maintenance and support. Each matter is unique, and a range of factors are considered when determining a claim, such as:

• the financial position of the applicant
• the circumstances, financial position and needs of other beneficiaries
• the age and any physical, mental or intellectual disability of the applicant or beneficiary of the estate
• the size and nature of the estate
• the relationship between the deceased person and the applicant
• any benefits previously given to the applicant or a beneficiary of the estate
• the moral duty and obligation for the deceased to provide for the applicant

If you have been left out of a Will it is important to get legal advice quickly. We can determine your eligibility to make a family provision claim, advise on the applicable time limits and likelihood of success, and pursue the claim on your behalf.

Challenging the validity of a Will

Will challenges concern claims that a Will is not valid and should therefore be void. Typical grounds for challenging a Will are:

• Undue influence – a claim that somebody exerted an unreasonable level of influence over the deceased person resulting in a Will’s provisions being different to what the testator might otherwise have wanted – generally benefiting the person accused of having exercised the undue influence.
• Fraud or allegations that the Will (or part of it) is a forgery – for example questions as to the authenticity of the signatures on a Will or allegations that the Will was not created or authorised by the deceased person.
• Lack of testamentary capacity – a claim that the testator lacked capacity to make the Will at the time it was executed. Such claims may arise when a deceased person was not lucid when the Will was made, for example, by having suffered from dementia or another form of memory loss.

Other issues concerning deceased estates

Other types of estate disputes might include questions over the interpretation of certain terms of the Will which may be ambiguous; obvious errors or mistakes, for example, where a Will refers to ‘my son John’ when the deceased’s son’s name was Jack’; claims that an executor should not be allowed to act in that capacity; and disputes between beneficiaries as to how the estate should be administered.

Defending a disputed estate

As an executor or administrator of an estate, you may find yourself facing a dispute. Estate disputes generally fall within the two categories discussed above – Will contests (family maintenance claims) and Will challenges which dispute the validity of a Will.

An executor is the estate’s legal personal representative and has a duty to uphold or defend the Will of a deceased person and preserve estate assets. That said, an executor may need to consider settling a reasonable claim that might otherwise succeed in court. An out of court settlement may be in the interests of the estate and beneficiaries to avoid costly litigation that would deplete estate assets.

Executors are generally appointed because they are trusted family members or friends of the deceased. Facing an estate dispute can therefore be both legally and emotionally challenging.

We provide considered and timely advice to help resolve estate disputes and claims in the most practical way possible. We will review your circumstances, the available evidence, and the likely outcome of pursuing or defending a claim so you can make an informed decision on how to proceed.

If you need assistance, contact [email protected] or call 03 9505 4999 for expert legal advice.