Finding Sensible Resolutions to Will Disputes

Unfortunately the sadness of losing a loved one can be exacerbated by disputes over the assets they leave behind.

Sometimes there are arguments over whether a Will is genuine, whether pressure was placed on the person to give certain gifts in their Will, or even whether the person had legal capacity to understand what they were doing when they made their Will. Disputes also arise where someone has made verbal promises to friends and family before they died, but those promises do not match up with the terms of their Will. Someone may have been expecting to receive a gift from a relative, but be surprised and disappointed to learn that there is no mention of them in the Will.

Disputes can also arise about who should be responsible to manage the assets of the deceased person. Sometimes the person who is named as executor in the Will is criticised for not doing their job properly, or for being too slow, or for showing favouritism. Sometimes relatives are accused of stealing from the house of the deceased. From time to time we also see situations where a person claims that the deceased person gifted expensive items to them in the days before they died, such as expensive artworks or large sums of cash.

In these very situations it is important to work towards compromise and resolution. The Supreme Court of New South Wales has jurisdiction to deal with disputes over deceased estates and Wills. However, the legal costs involved are usually very substantial. If a dispute over a Will or an estate carries on too long, and involves the complication and expense of preparing evidence for a hearing at court, a large portion of the estate can be lost to everyone in legal fees.

Our firm has decades of experience dealing with disputes over deceased estates. Our focus is always on trying to find a financially sensible resolution, and this usually involves helping to navigate the parties to look beyond emotions and hurt feelings to what is the most practical outcome. If you or your family are caught up in a dispute over a deceased estate, we would be very happy to give you a free 15 minute case assessment to see if we can assist you in resolving your family situation.

Please contact us on 9411 4466 or email@avlawyers.com.au

Family Provision Claims

A Family Provision Claim arises where a person who expected to receive a gift under a Will either misses out completely or is so unhappy with what they received that they want more.

If someone is in this position, they can bring an application to the Supreme Court of New South Wales. In that claim, they ask the court to vary the terms of the Will in order to make provision for them. It is called a “ family provision” claim because it is usually only family members who are eligible to claim. Strictly speaking, the people who can claim include surviving spouses, ex-spouses, children, grandchildren who were at some stage financially dependent upon the deceased, de facto partners, or people who were at one stage a member of the deceased’s household and financially dependent upon them.

In order to succeed in family provision claims, the plaintiff must show that they have financial need. That financial need may be an immediate one such as being unemployed or having credit card debts etc. It may be educational expenses or medical expenses. The person may have a large mortgage that they hope to get paid off.

Sometimes family provision claims are inspired by perceived injustices between beneficiaries. For example, if there are three children in a family, and only two of those children receive a gift and the third one misses out, that third person may be inspired to bring a claim. Often there is a reason why they were left out, perhaps during their lifetime they already received a substantial amount of money from the parent, or perhaps they have a history of estrangement from the deceased.

Often there is a lot of family background behind these disputes. These claims can uncover all sorts of unsavoury details from the past, such as infidelities, family violence, drug and gambling addictions, petty jealousies, unresolved conflict and previously unspoken hurts. One aspect to the way that we work that may set us apart is that we are very attuned to these family dynamics, and we are able to provide a sensitivity in the way in which we deal with people and their families.

Occasionally a family member has done something so terrible that the court will hold this against them. This would include violence or theft against the deceased. Such behaviour is called “Conduct Disentitling”.

Another situation which can arise in family provision claims is where there is a discretionary testamentary trust established under the Will. This means that money is held back by the estate and that the executors have discretion as to who gets the money, and when money is paid out to beneficiaries. In some circumstances, beneficiaries may be waiting a very long time to receive any money, or it may result in a concern that some beneficiaries will get more than their fair share. This is particularly a problem where an executor is also a beneficiary, as there is potential for the executor to act on self-interest and decide to give themselves money rather than share the money with other people.

There are strict time limits which apply to bringing family provision claims. Accordingly, if you think that you may be entitled to bring a claim, you should act quickly. Please contact our Estate Planning Team on 9411 4466 or email@avlawyers.com.au

Claims & Disputes

The person who is claiming money from the estate is called the plaintiff in the court proceedings. The executors of the estate under the will are called the defendants. Most Will disputes fall in the category of Family Provision Claims (see separate page), but there are many other types of disputes which we commonly see.

One common argument arises where there is doubt as to whether the Will maker had legal capacity at the time that they made their Will. We call these “testamentary capacity” cases. In these cases, there is often medical evidence from the time that the person made that Will which indicates that they may not have had the necessary understanding to make a Will.

Another situation is where it is alleged that the Will maker was coerced into making a Will. For example, let us imagine that a Will gifts all the estate to one of eight children, and the deceased was very sick at the time that the Will was made. The other children are likely to say that their parent lacked capacity or alternatively that the one child pressured them into making a Will wholly favourable to themselves.

Often allegations of testamentary incapacity or coercion are included in the pleadings as an alternative, in family provision claims.

When we act for the estate, our focus is on giving advice as soon as possible on the likelihood of the claimant being successful and also giving advice on how much they are likely to receive. As litigation can be very expensive, we try to take a commercial approach, and, where appropriate, recommend a commercial settlement of the matter. By doing this, we may save the estate many tens of thousands of dollars so that as much of the equity of the estate is protected for the benefit of the other beneficiaries. If a case is allowed to run to hearing without seriously attempting to settle, the total legal costs of all parties may exceed $200,000 – a big chunk out of most estates.

When we act for the claimant, we are strategic in putting together a very strong explanation of the circumstances in which provision is appropriate right at the beginning. We try to create strong pressure on the executors of the estate as early as possible so that the outcome is maximised, in the shortest possible timeframe, with a minimisation of legal costs.

Without wishing to appear critical of our competitors, sometimes there is a sense in which they seem to drag out these cases in order to maximise their own legal fees. This is completely the opposite to how we handle these matters. We would rather see an acceptable outcome as soon as possible for everyone.

If you would like assistance with a dispute over a Will, please contact our office on 9411 4466 or email@avlawyers.com.au

Lost Will

A particularly difficult situation can arise when no one can locate the Will of a person who has recently died.

Part of making an application for Letters of Administration (where there is no Will) involves providing evidence to the court that an exhaustive effort has been made to try to locate the Will. Such a careful search would include, for example, placing a notice in the local newspaper regarding the situation, speaking to any family members or close friends and partners to whom the deceased is likely to have spoken to regarding a Will, and even making contact with any solicitors with whom the family may have had dealings over the years. We can assist families with making these searches so that if an application needs to be made to the Court regarding letters of administration, we can verify that all reasonable steps have been taken.

If the original Will cannot be found, but a copy is located, so long as evidence can be given to the Court that provides reasonable certainty that the copy is a true copy, the Court is usually prepared to accept the copy and grant Probate.

In rare situations, the Court has been prepared to make orders reconstructing a lost Will. One example which we were successful in involved three sisters making Wills at the same time, with the same lawyer, in terms which were a mirror of each other. That is, each sister gifted the whole of her estate to her other two sisters in equal parts. The Will of the deceased sister, whose family we were acting for, was lost. However, we were able to obtain copies of the Wills of the other two sisters and armed with this information, the court was prepared to reconstruct the terms of the third missing Will. Where there is a Will, there is often a way!

Unfortunately, in circumstances where no copy or evidence about the likely contents of a missing Will can be found, the Court can only grant Letters of Administration, on the basis that the estate is intestate. If this results in significant hardship to a particular person or people, then it is always possible to make an application for family provision.

If you have a situation involving a lost Will, please contact us on 9411 4466 or email@avlawyers.com.au