Estate claims and disputes often arise between family members and other potential beneficiaries after a person dies.
The law and practice surrounding such claims and disputes can be complex and costs and delays can easily escalate if not dealt with appropriately.
Strict time limits often apply and so it is important advice be sought as early as possible.
We appreciate that disputes of this nature are often highly sensitive and emotional, and so where appropriate, we aim to facilitate and achieve early resolutions in order preserve family relationships and minimise or avoid unnecessary costs and delays.
We handle many contested estate claims and disputes and we provide expert advice and representation in all aspects of:
Family Provision Claims
Whilst individuals have the freedom to make a Will leaving their wealth to whomever they decide, this freedom is restricted by laws in Australia.
The law allows “eligible persons” to bring a claim against an estate to obtain more than they would otherwise receive under a Will or if they have been left out altogether. The court has the power to make an order in favour of an eligible person if the court considers adequate and proper provision was not made by the deceased person.
There are various categories of “eligible persons” which means there can be a wide potential range of claimants.
It is prudent that individuals making their wills and executors involved in estates consider whether there are any likely “eligible persons” and obtain advice if a claim is made or likely to be made.
If you are an executor or beneficiary, we can act for you during the estate administration and provide advice and act in defending, negotiating and resolving claims or potential claims.
If you have been unfairly provided for in a Will or left out altogether, you may have a right to bring a claim and we can provide advice on your rights, act for you in court proceedings, and if appropriate, negotiate to achieving a settlement to your satisfaction.
Challenging the Validity of a Will
In order to make a Will an individual must have the necessary legal capacity to do so. Important factors in testamentary capacity are that the individual:
- understands what he or she is doing;
- is aware of the nature and extent of his or her property and financial affairs; and
- considers the people who might have legitimate claims upon his or her estate upon dying.
Doubts about capacity may arise in many circumstances including during periods of ill-health or infirmity, incidences of mental illness or intellectual disability.
The Will must also represent the true wishes of the individual and not be contrived by any improper influence of others.
If you are a beneficiary of an earlier Will and you believe the deceased person did not have the legal capacity to make a new Will or was improperly influenced by another person to sign a new Will that did not reflect that person’s true wishes, there may be grounds for you to challenge the validity of the Will.
Other Estate Disputes
Estate claims and disputes arise over many issues and at various stages during a person’s lifetime and after a person dies, including for example:
During a person’s lifetime,
- disputes concerning the proper management and control of a person’s financial and property affairs and the appointment or removal of an attorney under an enduring power of attorney;
- Disputes concerning the appointment or removal of a guardian under an enduring power of guardianship and accommodation and health-related issues.
After a person dies,
- disputes between co-executors;
- disputes between executors and beneficiaries;
- challenging the appointment of an executor or removing an executor;
- disputes as to the interpretation or uncertainty of a Will;
- disputed debts and creditor claims;
- conflicts of interest;
- breaches of trust and unlawful distributions.
We provide advice and representation in all aspects of an estate whatever the issue may be.