Estate disputes and litigation can be complex and emotionally draining for the deceased’s surviving family members and beneficiaries. Sometimes disputes arise because somebody has not been left what they believe they deserve. Other times, a dispute could arise because somebody thinks that the Will is not real, or there was some pressure on the testator to make certain gifts.

Resolving an estate dispute may result in the terms of a Will or the statutory distribution of an intestate estate being altered through mediation, negotiation, agreement, or by court order.

Testators’ Family Maintenance Claims

A relative or other eligible person who has been excluded from a deceased’s Will or believes they have not received a fair share of the estate might decide to challenge it. Testators’ family maintenance claims are probably the most common out of the different types of Will disputes. They are usually started by family members or dependents – whether they believe they have not been adequately provided for or have been left out of the Will entirely.

A claim for a family provision order is subject to the Administration and Probate Act 1958 on the basis that the deceased person owed a moral responsibility to provide proper maintenance and support for the claimant and failed to do so. Section 90 of that Act says that the following people are eligible to make a claim:

• current spouse or domestic partners of the deceased
• children, stepchildren, and those treated as a natural child of the deceased
• former spouses or domestic partners of the deceased in certain circumstances
• a registered caring partner of the deceased
• grandchildren of the deceased
• in some circumstances, a spouse of a child of the deceased

In determining whether to make a family provision order, the court will consider a number of factors, including but not limited to:

• whether the deceased owed a moral responsibility to the claimant
• any obligations or responsibilities by the deceased to any other person who could bring a claim and the beneficiaries of the estate
• the deceased’s Will, or other evidence of a deceased’s intentions, including reasons why they have not included, nor provided further for the claimant
• the relationship between the deceased and the claimant

• the size of the estate and any liabilities of the estate

• whether the claimant has already been adequately provided for in the estate and the capacity of the claimant to provide for themselves
• how the other beneficiaries will be impacted by the claim if it is successful

Strict time limits apply for bringing a claim. If you believe you have been unfairly left out of a Will or are an executor of an estate facing a family maintenance claim, it is important to get legal advice from an experienced lawyer.

Challenging the validity of a will

A Will may be challenged on the basis that it is not valid. Grounds for challenging a Will may include:

• Undue influence– where it is alleged that somebody used unreasonable influence over the testator that resulted in him or her preparing a Will in a certain way, usually to that person’s benefit.
• Fraud – allegations that a Will or part of it has been forged, for example, that the signature is not the deceased’s.
• Capacity – claims that the deceased lacked testamentary capacity to make the Will at the time it was made. These claims can arise if the deceased was elderly and/or sick or suffered from dementia or another condition effecting memory or mental capacity.

Other types of estate litigation

Other estate disputes may involve obvious errors or mistakes in a Will, ambiguities in the terms of the Will, disputes as to how an estate should be administered, or concerning the fitness for a person to act in the capacity of executor.

Estate litigation is a complex and emotional area of law. Regardless of how a dispute starts, or whether you are a beneficiary or an executor, obtaining the right representation to guide you and protect your interests is essential.

If you need assistance, contact [email protected] or call 03 9326 1455 for a no-obligation discussion and for expert legal advice.