In Australia, there are legal avenues available to individuals who wish to contest a will or challenge the distribution of an estate. Although regrettable, such disputes are often unavoidable and sometimes essential to ensure fair outcomes. Understanding these legal processes and the reasons estate disputes arise can help individuals navigate these challenging situations.
One avenue for disputing a will is to challenge its validity. This can occur if there are concerns about the mental capacity of the deceased at the time of making the will. A challenge based on testamentary capacity questions the deceased’s mental competence to understand the nature and consequences of making a will at the time of its creation.
A will may also be contested if there is evidence of undue influence or pressure on the deceased to change the terms of the will, or simply a failure to comply with the required legal formalities during the will-making process.
Family Provision Claims
In every Australian state and territory, claims can be made by eligible individuals who believe they have not been adequately provided for in the will of a deceased person. These claims seek a court order for a larger share of the estate.
The rules about who is eligible to make such a claim vary across jurisdictions. Generally speaking, however, close family members (spouses and biological or adopted children) are always eligible to make a claim for a greater share of an estate. Other family members, such as stepchildren or former spouses, may also be eligible to make a claim in some jurisdictions.
Family provision claims are usually successful if a close family member has been disinherited and can demonstrate financial need. Such claims are often resolved privately between executors and claimants without involving a court hearing.
Reasons Estate Disputes Arise
Perhaps the most significant reason that estate disputes arise is that there was an existing negative family dynamic. When a loved one passes away, the emotional burden of the loss can complicate already difficult or strained relationships. Disagreements and conflicts between family members, especially in blended families or when there is an estranged relationship, can lead to challenges and disputes over the deceased’s intentions. Family provision claims most often arise when individuals believe that the distribution of assets was fundamentally unfair.
Another reason that estate disputes commonly arise is that the will of the deceased was out-of-date when they died. If a will is not regularly updated to reflect changes in circumstances, such as marriages, divorces, or new family members, it can create confusion and disputes regarding the deceased’s wishes. Similarly, vague or ambiguous terms in a will can often cause disagreements among beneficiaries.
Disputes can also arise if an executor or trustee fails to carry out their duties properly, including mismanagement of the estate, conflicts of interest, or allegations of misconduct.
Minimising Potential Estate Disputes
There are a number of steps that you can take to reduce the chance that your estate will become the subject of a dispute. The first step is to engage the services of a qualified and experienced estate planning lawyer when drafting a will. This will ensure that the will is not only properly drafted, taking into account legal requirements, but that you are prompted to think about potential sources of conflict.
It can also be helpful to establish open and clear communication with family members about the intentions and contents of the will. Discussing decisions in advance can provide an opportunity to flag and address concerns and potential conflicts. Such communication can help manage expectations and reduce the likelihood of disputes.
When drafting a will, it is important to use clear and specific language to avoid ambiguity and confusion. Clearly articulating the intended distribution of assets can help minimise potential disputes.
Regularly reviewing the will and updating it as circumstances change can also help ensure its relevance and accuracy. This includes considering changes in relationships, births, deaths, and significant assets.
In cases of potential disputes, exploring alternative dispute resolution methods, such as mediation or arbitration, can provide a more amicable and cost-effective resolution compared to litigation.
Will disputes and estate challenges can be emotionally and financially draining for all parties involved. Understanding the legal avenues available for disputing a will or estate, the reasons these disputes arise, and implementing strategies to minimise the potential for disputes can help navigate these challenging situations with greater clarity and efficiency. Seeking professional advice and engaging in open communication can contribute to a smoother administration of the estate and reduce the likelihood of prolonged and contentious disputes.
This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (02) 4382 2200 or email [email protected].