Families should be aware that their disputes do not die with an elderly family member, and can in fact escalate into litigation against the estate. We frequently handle matters in which an unresolved dispute between family members carries on and becomes worse after the death of one of the people involved. These claims usually involve a breakdown in family relationships, lack of communication about what will happen after older family members die and unclear or unrealistic expectations regarding the person’s estate.
Disgruntled or upset family members can legitimately make a claim against an estate of a family member in circumstances where the relationship has completely broken down and the claimant was not provided for in the family member’s Will. The resulting litigation can be stressful, time consuming and deeply upsetting for all parties who are required to provide personal details to the Supreme Court of New South Wales regarding the family’s relationships and financial circumstances. The Claimants may not have spoken to the deceased for a number of years, however if they are the spouse of the deceased, the child of the deceased, a de facto partner living with the deceased at the date of death, a former spouse, a person who was wholly or partly dependent on the deceased, a member of the deceased’s household or a person the deceased was living in a close personal relationship with at the date of death, they may be eligible to lodge a claim.
The Court will consider the relative financial positions of the different claimants and the entirety of the relationship between the parties. If the claimant requires financial assistance, the Court may find in their favour despite a poor relationship with the deceased in the years before the family member died.
Our advice to those wishing to put their affairs in order or consider the potential impacts of a family dispute after their death is:
- communicate your intentions clearly with all family members who may feel entitled to make a claim on your estate;
- formalise your intentions in a Will drawn by a solicitor;
- consider binding superannuation nominations and a succession plan for any positions you hold in a family company;
- inform family members of any gifts you intend to make which they may find surprising, unusual or unfair; and
- seek specific advice from your solicitor if your affairs are complex or if there is a family dispute on foot which you suspect may create issues between your loved ones after you are gone.
For further advice please contact Caitilin Watson.