What can be done when there is fight over the terms of a person’s Will?
This is an area of particular expertise at Atkinson Vinden, in the area of Will disputes. We prepare hundreds of Wills for clients each year, and hold many thousands of Wills in our strong room, and so over several decades we have developed a huge body of knowledge and experience in dealing with arguments between family members regarding what are in Wills, and who should get what. We are often referred Will dispute cases from other lawyers and accountants in Sydney because of our acknowledged expertise in this area. Our partners are sometimes appointed executors, meaning that they have particular experience in handling difficult beneficiaries with diverging ideas of what should happen.
Some of the main disputes we see in this area include:
- family provision claims – this is where someone (usually another member of the immediate family) is unhappy with missing out on a share of the estate, or where they do not receive an adequate distribution. A common example is where one partner dies, only letting their spouse live in the home without any separate funds to live off – a situation which often is completely unworkable. It may also be a claim by an ex-partner, a child, a former or current member of the household of the deceased, or a grandchild. In these cases, where the court is satisfied the circumstances warrant it, an order can be made effectively re-writing the Will to make greater provision for the claimant.
- Disputes over authenticity, duress or capacity – this is where someone doubts the validity of the Will. Perhaps there are suspicions that the signature of the deceased has been forged. Or that they were pressured into signing the Will? Or perhaps they did not legally understand what they were doing due to dementia? Courts can assist clarify these issues, and this is often necessary, particularly if a lot of money is at stake.
- Lost Wills – sometimes an original Will cannot be found, but perhaps there is a copy, or perhaps surrounding evidence is strong enough to enable the court to make an order reconstructing what the Will would have said.
- Interpretation of Wills – sometimes it is not clear what the Will means. This often occurs when people try to write their own Wills, rather than seeking legal advice. Where a Will does not make sense, a court can be asked to interpret the Will, and make orders for rectification.
- Disagreements between beneficiaries regarding what should happen to estate assets. What happens, for example, where a home is gift to three children, and two of the children want to sell the house, but the third wants to keep it as an investment? Or if the Will leaves a discretion to the executor/trustee as to who gets what, and over what timeframe? The court can be asked to give directions where the parties themselves cannot agree on such issues.
Going to court is expensive, so a particular feature of our work in this area is to explore opportunities for compromise and potential settlement options. We often hold mediation conferences to negotiate settlements, and can organise as mediators retired judges and silks to assist.