When someone passes away, it’s natural for their family to experience a difficult time.

A common cause of added distress for families is when someone dies intestate, that is, without a valid Will. In such cases, there’s no clear guidance from the deceased about their wishes for their funeral arrangements or how their property should be distributed.

Many people try to minimise future distress by carefully planning their estate. However, even with the best intentions, and when a valid Will exists, it doesn’t always guarantee a smooth process, and disputes can arise at various stages.

Executor and Beneficiary Disputes

The executor nominated in a Will has significant authority over the deceased’s estate – this includes making decisions about the funeral and the management of the deceased’s property. This broad power can sometimes lead to tension if the executor’s decisions upset beneficiaries.

Some Wills nominate more than one executor. This provides a safeguard if one executor dies before the will-maker or is unwilling to act when the time comes. However, when multiple executors are tasked with working together to administer an estate, disagreements and conflicts between them can arise, complicating the process. Likewise, concerns about an executor’s suitability for the role, or potential conflicts of interest, can lead to challenges to their appointment.

We can provide guidance on these types of disputes so they can be resolved efficiently and with as little disruption as possible to the administration of the estate.

Challenging the Validity of a Will

In Queensland, a Will can be challenged on several grounds, including:

• Lack of testamentary capacity: If there are concerns that the person who made the Will did not have the mental capacity to understand what they were doing at the time of signing.
• Undue influence: If it’s believed the deceased was improperly pressured or influenced by another person when making their Will.
• Improper execution: If there are issues with how the Will was signed or witnessed, such as the absence of required signatures or witnesses.

Family Provision Claims: When Someone is Left Out or Feels Short-Changed

Individuals who feel they have not been adequately provided for under a Will, or have been completely left out, may be eligible to claim a greater share of the estate. These are known as family provision claims.

In Queensland, certain family members and dependents may be entitled to claim for provision under the Succession Act 1981 (Qld). To succeed, the claimant generally needs to demonstrate that the provision made in the Will is insufficient for their proper maintenance, education, or advancement in life.

Strict limits apply for making a family provision claim so it is important to seek legal advice promptly.

The court considers various factors when assessing a claim, including the deceased’s moral obligations to the claimant, the applicant’s financial needs and resources, the circumstances of other beneficiaries (as relevant), and the size and nature of the estate.

Resolving Estate Disputes

Estate disputes can have lasting negative impacts on family relationships. While many of these disputes can ultimately end up in the Supreme Court of Queensland, it is almost always advisable to avoid litigation if possible. Court proceedings are time-consuming, expensive, and stressful for all involved.

Fortunately, there are several effective alternatives to court that we can help you explore to reach an amicable outcome or at least allow the parties to reach an agreement and move forward.

Often, disputes can be resolved through direct negotiation between the parties involved, with the assistance of their respective lawyers.

Mediation may also be used to resolve an estate dispute. This process involves a neutral third party (a mediator) facilitating discussions between the disputing parties to help them reach a mutually agreeable settlement. Mediation can save the estate from incurring significant legal costs associated with a court battle. For instance, a family provision claim can often be successfully resolved through mediation between the executors and the claimant.

Seeking Assistance

Estate disputes can be complex and emotionally charged. Seeking legal advice early in the process is important to ensure the best possible outcome. We handle a range of estate disputes and can provide invaluable guidance, advise on potential results, and assist in preparing your case effectively.

If you need help, please call 07 5495 2608 or email [email protected].