Will disputes are one of the most common family law matters that cause sour relationships between family members. Let’s admit it – we all want to inherit something from our older relatives when the time comes. We want to receive it cleanly with no disputes. However, some family members may wish to acquire more than what they need.
Will disputes in Australia are a sensitive matter, as they often involve family dynamics, relationship breakdowns, and wealth changing hands across generations. This article aims to provide an engaging and informative overview of Will disputes in Australia. We will also include relevant laws and helpful tips on how to dispute a Will in Australia.
The Executor of the Will
An executor is a eligible person responsible for carrying out the wishes of the deceased after their death. This involves a range of tasks, including:
- Locating and securing the deceased’s assets: This includes everything from bank accounts and real estate to personal belongings.
- Paying off debts and taxes: The executor ensures all outstanding financial obligations are fulfilled.
- Distributing the remaining assets to beneficiaries: This is done according to the instructions in the Will.
- Filing legal paperwork and navigating probate court: This ensures the estate administration is handled correctly and legally.
So, whoever the deceased named in their Will as the executor is the one legally entrusted with these crucial tasks.
The Role of an Executor During Will Disputes
Now that we have defined what an executor’s role is, what is their role during Will disputes? An executor’s role during a Will dispute can be complex and delicate. They balance their responsibilities as an administrator of the deceased’s estate with the legal intricacies of the challenge. Here’s a breakdown of their key duties:
1. Duty to Uphold the Will:
Primary Aim: The executor’s primary obligation is to uphold the deceased’s wishes as expressed in the Will, even if disputed. This means gathering evidence and defending the validity of the document in court if necessary.
2. Duty to Act Impartially:
Neutral Ground: While defending the Will, the executor must remain impartial towards beneficiaries. They are responsible for considering all claims and evidence objectively, even if they personally favour one side.
3. Communication and Transparency:
Keeping Everyone Informed: The executor must keep all beneficiaries informed about the dispute and any legal proceedings. This involves transparent communication regarding evidence, potential outcomes, and legal fees.
4. Cooperation and Negotiation:
Seeking Resolution: Before diving into courtroom battles, the executor should explore alternatives like mediation or negotiation. This can save time, money, and emotional distress for all parties involved.
5. Legal Compliance and Guidance:
Seeking Legal Expertise: Navigating a Will dispute requires expertise in probate law and relevant legal procedures. The executor should work closely with their lawyer to ensure all actions are compliant and protect the estate’s interests.
6. Managing the Administration:
Maintaining Order: Despite the dispute, the executor must continue managing the estate responsibly. This includes securing assets, paying debts, and keeping accurate records for potential court presentations.
7. Protecting the Estate:
Fiduciary Responsibility: The executor has a fiduciary duty to act in the best interests of the estate. This involves preventing fraudulent claims, minimising legal costs, and safeguarding assets from potential mismanagement.
Read our factsheet relevant to this topic here: https://jbsolicitors.com.au/factsheet/contesting-challenging-a-will/
Why Will Disputes Happen
While “family feuds” might encompass a wide range of motivations, let’s unpack the specific ways these and other factors can trigger a Will contest:
1. Undue Influence:
- Coercion and Manipulation: This could involve pressuring the deceased through threats, emotional manipulation, or exploiting their vulnerability due to illness or age.
- Suspicious Changes: A drastic change in the Will favouring a specific individual, especially close to the deceased’s death, could raise red flags.
- Isolation and Secrecy: If the deceased suddenly became isolated from family or friends after drafting the Will, it might suggest someone else’s influence.
2. Unfair Provision:
- Disinherited Family Members: Omitting close family members completely or leaving them insignificant portions can spark legal challenges, especially if there’s no justifiable reason.
- Disproportionate Distribution: Leaving the bulk of the estate to one beneficiary while others receive significantly less can be disputed if it seems unreasonable or contradicts the deceased’s known intentions.
- Changing Needs and Circumstances: A Will drafted years ago might not reflect the deceased’s current relationships or the financial needs of beneficiaries, leading to challenges in seeking a more equitable distribution or further.
3. Formal Flaws:
- Witness Errors: Improper witnessing procedures, such as missing signatures or witnesses lacking capacity, can render the Will invalid.
- Signature Issues: Forged signatures or doubts about the deceased’s mental state when signing can raise questions about the document’s authenticity.
- Mistakes and Ambiguities: Errors in wording, unclear language, or missing information can create confusion and inconsistencies, leading to interpretation disputes.
4. Lack of Capacity:
- Mental Illness: If the deceased suffered from dementia, Alzheimer’s, or other cognitive impairments, their mental capacity to create a valid Will at the time of signing may be challenged.
- Undue Medication: Concerns about excessive medication influencing the deceased’s judgment and Will-making decisions can be grounds for a contest.
- Vulnerability and Exploitation: Taking advantage of someone’s physical or emotional vulnerability to manipulate them into making a Will that contradicts their true wishes can be contested.
Understanding Family Provision Claims
Not everyone can contest a Will. Family provision claims, for example, are reserved for specific individuals:
- Immediate family members: Children, spouses, or de facto partners can claim if they were inadequately provided for in the Will.
- Former spouses: In some cases, former spouses may be eligible to make a family provision claim.
Section 57 of the Succession Act 2006 (NSW) provides the full list of eligible persons.
Tips for Navigating the Storm:
Contesting a Will can be emotionally draining and financially demanding. Here are some tips to help you stay afloat:
- Prioritise communication: Keep all beneficiaries informed and try to maintain open communication, even if it’s challenging.
- Manage your well-being: Don’t neglect your own mental and physical health during this stressful time.
- Seek support: Consider professional counselling or support groups to deal with the emotional burden.
- Trust your legal team: Work closely with your Will and probate lawyers and follow their guidance throughout the process.
- Prevent time constraints: Strict time limits apply to Will disputes and may cause time constraints.
How Can JB Solicitors Help?
JB Solicitors act as your expert guide about Will and Estates law and fierce advocate when facing a Will dispute. They:
- Assess the situation and advise on options: Analysing the grounds for challenge or estate litigation, explaining legal avenues, and guiding you through cost-benefit analysis.
- Gather evidence and build a case: Collecting evidence, consulting experts, and drafting legal documents to strengthen your claim for a adequate provision or further provision from the Will.
- Facilitate negotiation and Will mediation: Seeking amicable resolutions while protecting the interests of your party and other interested parties in settlement agreements.
- Represent you in the local or supreme court: Advocating your case, navigating legal complexities, and protecting your rights throughout proceedings.
- Offer emotional support and guidance: Understanding the emotional toll, providing reassurance, and keeping you informed every step of the way.
Choosing the right lawyer with experience in contested wills can empower you to navigate this challenging process with confidence and secure a fair outcome. Choose and contact us today.
