Unfair Wills & Estate Disputes

Estate disputes come in all shapes and sizes

If you have recently lost a family member, you may be surprised to discover that the Will left behind seems to be blatantly unfair. Conversely, you may be an executor or beneficiary named in a Will and be faced with a challenge (whether expected or unexpected) by somebody claiming a larger portion of the estate than set out in the Will.

Other estate disputes concern questions over the validity of a Will due to claims of undue influence, allegations of fraud or forgery or that the deceased lacked legal capacity to make the Will. The interpretation of ambiguous terms in a Will, mistakes, or a challenge regarding the appointment of an executor or administrator may also arise.

Why might a Will be unfair?

There are many reasons why a Will may not be fair.

  • A Will may not be updated after a testator’s personal or financial circumstances change, leaving out new partners or family members.
  • A child may discover, after a parent dies, that money provided as a ‘gift’ was really perceived by the parent as a loan and has been accounted for in the Will by reducing the ‘borrower’s’ share of the estate and providing a greater share to other sibling/s.
  • Conversely, a loan made to one child may not have been accounted for in the Will, when it was ‘common belief’ between the family that it should have been.
  • A child who has cared for a frail parent for a long time may have incurred expenses and lost personal time whilst other siblings carried on with their lives building careers and assets. In these circumstances, it may be reasonable that the carer be compensated with a larger portion of the estate than other siblings however the Will may not reflect this.
  • A falling out can cause people to act rashly resulting in a hurried decision to cut out a beneficiary or scale down his or her inheritance. Despite making amends, the Will may not have been subsequently altered.

What can you do about an unfair Will?

A family provision claim allows an eligible person to claim provision from an estate if it can be shown that the deceased person failed to make adequate provision for his or her proper maintenance, education and advancement in life.

Eligible persons include spouses, former spouses or de facto partners, children (including adult children), certain individuals who were dependent on the deceased and either a grandchild or member of the deceased’s household at the time of his or her death, and certain persons living in a close personal relationship with the deceased.

A successful family provision claim will result in the terms of a Will (or proposed distribution of an intestate estate) being changed in favour of the claimant, providing him or her with a greater share. Family provision claims are often settled through negotiation and without proceeding to Court.

Proving a Will is unfair

In determining whether a Will is unreasonable, a Court looks at all of the circumstances. The degree to which the deceased had a moral obligation to provide for the claimant is assessed in light of the proposed distribution of the estate, taking into account his or her personal circumstances, age, health, needs and financial situation as well as the competing needs of other beneficiaries.

Available evidence regarding the deceased’s obligations and intentions towards a claimant is also relevant as is the nature and length of the relationship the parties had. Financial and non-financial contributions made to any property of the deceased person or to the family or personal welfare of the deceased are also important considerations.

If you are a relative or somebody who shared a close relationship with a deceased person and feel that the Will is unfair, then you may be able to make a family provision claim. Time limits apply and it is important to get legal advice quickly.

Family provision claims and executor’s duties

An executor may need to deal with or defend a family provision claim made against the estate and is well advised to do so under the guidance of an estate lawyer. As the legal personal representative of the deceased, executors have a range of obligations including the preservation of estate assets.

A family provision claim may be justified and arise because of errors or omissions in a Will, the failure of a testator to update a Will or a range of other circumstances. In such cases the executor may need to consider a reasonable claim that is likely to succeed, rather than deplete assets through costly litigation.

Conversely, some claims are vexatious and will be fiercely contested causing grief and anxiety to the deceased’s family. In all cases, the individual circumstances of each matter must be considered before determining whether the claim should be defended or negotiated.

Challenging the validity of a Will

The main grounds for disputing the validity of a Will are:

  • Claims of undue influence – where a party claims that a person (usually a beneficiary) exerted an unreasonable level of influence over the deceased which resulted in the Will being prepared in a certain manner.

For example, where the deceased was elderly or vulnerable and leaves a considerable portion (or all) of his or her assets to a paid carer, excluded (or affected) children of the deceased may claim that the carer exerted an undue level of influence which resulted in the Will being drawn in favour of the carer.

  • Allegations of fraud or forgery – examples include questions regarding the authenticity of the signatures on a Will, particularly the deceased’s signature, or where a document is alleged not to have been created or authorised by the deceased but by another person or group of persons.
  • Lack of necessary mental capacity (or testamentary capacity) – allegations that the deceased lacked capacity to make the Will at the time it was executed. These types of claims often arise when the deceased was elderly and sick for long periods of time or suffered from dementia or some other form of memory loss.

Estate litigation is often highly emotional and tenaciously fought for a number of reasons, not the least of which is that the parties to a dispute often find themselves in a vulnerable and distressed state before the dispute even arises.

Family circumstances and histories are also often complicated and the disputes that arise in the context of a deceased estate may have been years or even generations in the making. Given the potential ramifications on both a financial and personal level it is important that you engage lawyers that you can trust and who are experienced in working with parties in such fraught circumstances.

If you need any assistance contact one of our lawyers at [email protected] or call (02) 9708 2222 for a no-obligation discussion and for expert legal advice.