An estate dispute can be complex and emotionally challenging, often tearing families apart. In Australia, the laws surrounding estate contestation vary across states and territories. This makes it crucial for individuals to understand their rights and obligations in such situations.
This article will help you understand what is an estate dispute and how to resolve it.
What Is an Estate Dispute?
An estate dispute in Australia is a disagreement between two or more parties over the distribution of a deceased person’s assets. These disputes can arise for a variety of reasons, including:
- Alleged invalidity of the Will. This could be if the Will-maker lacked mental and testamentary capacity at the time of signing, was under undue influence by another person, or failed to follow the proper legal formalities.
- Family provision claims. An eligible person – such as an immediate family member, former husband or wife, de facto partner, or children who believe they did not receive adequate provision in the Will – can make a family provision claim.
- Disputes over the interpretation of the Will. This can occur if the language of the Will is ambiguous or unclear.
- Disagreements over the administration of the estate. This can happen if there is a disagreement between the executor of the Will and other beneficiaries, or if there are concerns about the executor’s handling of the deceased’s estate and assets.
How to Resolve an Estate Dispute?
The Succession Act 2006 (NSW) provides a framework for resolving estate disputes in New South Wales, Australia. The Act encourages parties to resolve disputes through informal means, such as mediation, but it also provides for court intervention where necessary.
- Informal Resolution. The Act encourages parties to resolve the dispute through informal means by initiating a discussion on the issues regarding the disputed Will.
- Mediation. If informal negotiation is unsuccessful, parties may attempt to resolve the dispute through mediation. Mediation is a voluntary process in which a neutral third party helps the parties reach a mutually agreeable settlement.
This method can be a cost-effective and efficient way to resolve a dispute, and it can help to preserve relationships between family members.
- Court Intervention. If parties are unable to resolve an estate dispute through informal means, they may apply to the Supreme Court of New South Wales for assistance. The Court has a wide range of powers to resolve estate disputes, including:
- Interpreting Wills
- Making family provision orders
- Removing executors
- Distributing estates after the deceased’s death
Dispute Resolution Process
The process for estate dispute resolution in New South Wales, Australia, involves several methods of alternative dispute resolution (ADR). Parties can use these methods before, during, or after the formal court process.
1. Initiate contact. Either party can initiate contact with a mediator or a practitioner to request estate mediation. The other party is then contacted to ensure their interest in the process, and the issues that are to be discussed are tabled.
2. Select a practitioner. Once the process begins, an estate dispute mediator will need to be chosen from a list of candidates provided by the mediator.
3. Negotiation sessions. The negotiation sessions begin in earnest, and the mediator helps the parties involved in the dispute to reach an agreement. The mediator does not make any decisions, and the parties must agree to be bound by the expert’s decision in expert determination.
4. Settlement. If a settlement is reached, it is agreed to, and parties consent to the arrangement. The mediator can help draft a written agreement, and the settlement can also be made into an enforceable order if both parties consent.
5. Impasse. If a settlement cannot be reached, alternative methods can be attempted, or estate mediation can be terminated. If an issue is not resolved by mediation, an application can be made to the NSW Civil and Administrative Tribunal (the Tribunal).
6. Tribunal hearings. If you have a matter in the Tribunal, you should attend the hearing. Additionally, if you’re unable to attend in person, you can request a telephone hearing or present your case in written form.
Mediation Is a Requirement
Mediation is compulsory in NSW estate disputes cases, and parties are often required to participate in mediation. Section 98 of the Succession Act encourages the settlement by affected parties of disputes concerning the estate of a deceased person.
Moreover, unless the Court, for special reasons, otherwise orders, it must refer an application for a family provision order for mediation before it considers the application.
Furthermore, the Court may make a family provision order in terms of a written agreement (a consent order) that:
- is produced to the Court by the affected parties about an application after mediation, or on the advice of a legal practitioner, and
- indicates the parties’ consent to the making of the family provision order in those terms.
The regulations may make provision for or concerning the following:
- mediations and consent orders under this section,
- regulating or prohibiting advertising concerning the provision of legal services in connection with mediations and other proceedings concerning the estate or notional estate of a deceased person.
Mediation is a highly successful method of dispute resolution. There are many benefits to participating in mediation, including salvaging relationships and retaining confidentiality. If you require legal advice or representation in any legal matter, you can contact a lawyer.
Conciliation vs. Mediation
The degree of third-party intervention is the primary distinction between the two procedures. In issues of merit and procedure, conciliators have more power to interfere than mediators. Their involvement could be advantageous if it were to support or counsel the parties on what would appear to be a reasonable settlement.
Additionally, conciliators, unlike mediators, are not allowed to be “neutral” on substantive issues. This is because they are required by the statute governing their work to indicate to the parties what is and is not negotiable in terms of that statutory framework.
This is also consistent with the fact that conciliators operate within statutory frameworks that set standards and other policy objectives and that conciliators are public officials rather than private practitioners.
Need Help Navigating an Estate Dispute Case?
Estate disputes can be emotionally draining and complex. It often involves disagreements over Wills, family provision claims, and the administration of estates. Seeking guidance from an experienced family lawyer can help you protect your rights under the estate law. It can also help you understand your options, and achieve a favourable outcome.