Each year we assist hundreds of people with their estate planning needs, including drafting wills and powers of attorney. We also administer dozens of deceased estates, helping executors with what can be a burdensome task. What some may not be aware of is that AV has a growing practice assisting families in dispute over wills, such as when a person discovers they have been left out of a will. Associate Caitilin Watson explains.
“But I’ve spent the last 20 years living with mum. She couldn’t look after herself. How can she have left me nothing?”
“How can my aunt leave her entire estate to people she barely knew? It should go to her family.”
“Why is my step-mother changing what she agreed with Dad, now that he’s gone? Her money was meant to go to her children and dad’s money was to come to us.”
I have heard each of the above statements from distressed people in the past few months in my work handling disputed estates. When someone has passed away, they are no longer available to explain their wishes, or why they made their will in a particular way. In cases where the provisions of a will come as a surprise to family members, this can raise many questions and cause distress for those left behind.
Under the legislation in NSW governing the making of wills and administration of estates (Succession Act 2006), the court can make orders varying the terms of a will to provide for someone who has been left out, or to make greater provision if what has been gifted is inadequate. The circumstances where such orders can be made are extremely limited, and of course if the court makes such an order, it must necessarily result in someone else receiving less.
One recent example stands out to me. Gerald stopped working and moved in with his elderly parents to care for them. As the years passed, they became frail and needed full time care from Gerald. He cared for them lovingly for over a decade. His father passed away and then his mother after a long decline. Under his mother’s will, Gerald was left the home they lived in together. His two sisters received a small legacy payment. One sister has challenged the will in the Supreme Court, claiming Gerald forced their mother to leave the property to Gerald. Gerald is defending the claim and will need to lodge a claim seeking provision from the Estate. If the will is found to be invalid, Gerald will need more from the Estate because he would be penniless and homeless without provision.
In a different case, David’s father George passed away leaving his second wife Emma, his three adult children and her three adult children. George and Emma found love late in life aged 70 years. They had each raised three children with their first spouses. When they married, they agreed their wills would leave his money to his children and her money to her children. All the children are in their 40s with families and commitments of their own. Now Emma, aged 85 years has challenged the will, claiming she needs money for her retirement. David and his siblings are defending the will.
One practical step that can help avoid acrimony is if the will-maker leaves a letter with their will, explaining their decisions. It may be that there was a very good reason for a parent leaving more to one child than another, for example where the parent has gifted a large amount to one of their children during their life, so that they are seeking to achieve parity by gifting a greater amount to the other children later on.
Our experience is that a large proportion of disputes in this area are ultimately driven by unresolved past conflict between family members. That is why holding a family conference with a skilled mediator can provide an opportunity for those past hurts to be articulated, and then to work out together the best way to resolve any remaining disappointment about the gifts in a will. Executors can agree to enter into a deed of family arrangement to vary the provisions in a will if they believe that it is in the best interests of the administration of the estate. For example, they might reasonably form the view that a settlement will avoid a large amount of legal fees being incurred, something which no doubt the will-maker would never have contemplated.
Each year we act in various estate disputes, whether it is helping executors to respond to angry beneficiaries, or in some cases helping family members understand what might be possible to address their disappointment in being left out of a will. It is an emotional area of legal practice, but also highly satisfying when resolution can be found and families find a way forward together.