In Australia, individuals have legal avenues for disputing a will or challenging 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 helps people navigate these challenging situations.
Validity Challenges
One way to dispute a will is to challenge its validity. This occurs if there are concerns about the deceased’s mental capacity when making the will. A challenge based on testamentary capacity questions whether the deceased understood the nature and consequences of making the will at that time.
Executors or beneficiaries may also contest a will if they suspect undue influence, pressure, or a failure to follow required legal formalities during the will-making process.
Family Provision Claims
In every Australian state and territory, eligible individuals may make claims if they feel they have not been adequately provided for in a deceased person’s will. These claims seek a court order for provision or a larger share of the estate.
Eligibility rules vary across jurisdictions. Generally, close family members—spouses and biological or adopted children—can make a claim. Some stepchildren or former spouses may also be eligible in certain areas. An experienced lawyer can assess your circumstances and advise if you are eligible under the relevant legislation.
Family provision claims often succeed when a close family member has been disinherited and demonstrates financial need. These claims frequently resolve privately between executors and claimants or through mediation, avoiding a court hearing.
Reasons Estate Disputes Arise
Estate disputes often stem from pre-existing negative family dynamics. The emotional burden of losing a loved one can strain already difficult relationships. Disagreements between family members, especially in blended families or estranged relationships, can lead to disputes over the deceased’s intentions. Family provision claims often arise when someone believes the asset distribution was unfair.
Another common reason is an outdated will. If a will does not reflect changes like marriages, divorces, or new family members, confusion and disputes can result. Ambiguous or vague terms in a will may also cause disagreements among beneficiaries.
Executors or trustees who fail to carry out their duties properly—through mismanagement, conflicts of interest, or misconduct—can also trigger disputes.
Minimising Potential Estate Disputes
To reduce the risk of disputes, engage a qualified estate lawyer when drafting your will. This ensures the will complies with legal requirements and helps you anticipate potential sources of conflict.
Open and clear communication with family members about your intentions can flag and resolve concerns before they escalate. Discussing decisions in advance helps manage expectations and reduces disputes.
Use clear and specific language when drafting your will. Clearly stating the intended distribution of assets helps minimise potential disputes. Regularly review and update your will as circumstances change, including relationships, births, deaths, and significant assets.
If a dispute arises, consider alternative dispute resolution methods such as mediation or arbitration. These approaches provide a more amicable and cost-effective solution compared to litigation.
Conclusion
Will disputes and estate challenges can be emotionally and financially draining. Understanding the legal avenues for disputing a will in Australia, the reasons disputes arise, and strategies to minimise them helps navigate these situations more effectively. Seeking professional advice and maintaining open communication contributes to smoother estate administration and reduces the likelihood of prolonged disputes.
This is general information only. Obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help, please call 07 5495 2608 or email [email protected].