Will Challenges and Estate Litigation

A practical and commercial approach to disputes over deceased estates or the validity of a will can lead to the resolution of claims and serves to preserve the assets of the estate for the benefit of beneficiaries.

In today’s environment, estate disputes can escalate and substantial legal fees can consume the assets of the estate which would otherwise be distributed among beneficiaries. Disputes relating to a deceased estate are as varied as the personal circumstances from which they arise, but at the core there are a limited number of ways in which a will or estate may be challenged.

With offices spanning New South Wales, Victoria and Queensland, our national team of practitioners comprises four partners and provides a multi-disciplinary service offering to our clients. Our team welcomes the opportunity to develop a partnership to provide advice and representation in the challenging circumstances of a litigated dispute.

Our team has the expertise and experience to provide strategic advice and representation tailored to each unique scenario you may face, and guide you through the end-to-end litigation process. The following is a snapshot of the claims and circumstances in which our team can assist.

Deceased Estate

Also known as family provision claims, these are the most common form of estate disputes. A claim may be made against an estate by anyone who qualifies as an eligible person under the relevant legislation, including current and former spouses, de facto partners and children of the deceased. Where the provision in the deceased's will is insufficient to meet the needs of an eligible person, the Court may make orders for further provision from the estate for that person's maintenance, education or advancement in life, notwithstanding the terms of the will.
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Executor's commission

Executors can be entitled to receive payment for their work, particularly where they are not also beneficiaries to the estate and therefore stand to gain nothing from administering the estate. Unless an amount or method of determining commission is set out in the will, a claim by an executor for commission must be adjudicated by the Court.

Informal Testamentary documents

An informal document is any document which appears to set out how a deceased person intended to distribute their estate but which does not meet the formal requirements of a will. It may be unsigned, improperly witnessed or, in rare cases, not be in writing (such as an audio or video recording). Disputes can arise where a previous will is replaced by an informal document which is more recent but is not recognised as a formal will. Parties who benefit under each of the documents may bring competing claims

Intestacy

Where a person passes away without leaving a will or informal document of any kind their estate is distributed according to the rules of intestacy set out in legislation. This involves an assessment of the nearest relatives of the deceased, particularly spouses or children. Intestacy may be the fallback position in the event that a claim in relation to an informal document is unsuccessful or a will is struck out for undue influence or lack of testamentary capacity.
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Mediation

Many estate disputes involve a mediation between the parties in an attempt to resolve the issues. This is especially true of family provision claims in which it is compulsory for a mediation to be held before the Court will list the matter for hearing. Alternatively, parties involved in a dispute over a deceased estate may choose to mediate before proceedings are commenced in an effort to avoid the costs of litigation.
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Notional Estate

An order of the Supreme Court declares certain property to form part of the deceased's estate, despite not being owned in their name at the time of death. Notional estate may be used to satisfy a claim for further provision, or in relation to the costs of a claim where the assets of the estate would otherwise be insufficient. This type of application is unique to NSW and can only be made in conjunction with a claim for further provision.
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Replacement of Executor

An executor who is granted probate under a will must call in the assets, pay the liabilities and distribute the estate according to the will. An executor who fails to perform their duties within a reasonable time, or at all, may be replaced by order of the Court on the application of any beneficiary or other interested person. In that case, any person willing to take on the role and who is approved by the Court may be appointed.
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Testamentary Capacity

Any adult may make a will provided they fulfil the formal requirements and have testamentary capacity, often referred to as 'being of sound mind'. Persons who lack testamentary capacity include children and those who suffer from certain mental illnesses or disabilities. People who have developed dementia or suffered a debilitating stroke often lose their testamentary capacity. Such individuals are often capable of expressing their wishes for their estate but lack capacity in a legal sense, and disputes can then arise where they give instructions for the preparation of a will.
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Undue Influence

A will is valid only to the extent that it expresses the intentions of the will-maker. Any part of a will which has been made under duress or coercion from a third party will be invalid. If a person presses someone, such as a vulnerably elderly person, into making any part of a will in their favour, the Court can strike out that provision on the application of an executor or beneficiary. Indications of undue influence include a sudden change in distribution of assets from previous wills or the unexpected inclusion of a large bequest to a person on whom the deceased relies in their day to day life, such as a carer.
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