Will Disputes

A carefully considered Will and estate plan prepared with the assistance of an experience professional reduces the likelihood of a dispute about your estate when you pass away.  However, even with a carefully prepared Will and estate plan – disputes can ‘and do’ occur.  This is generally occurring at a very emotional time with all the interested parties grieving a loss.

Our team draws on their decades of experience to provide a calm, focussed approach to help clients through what can be a difficult time.

Family Provision Claims

A common type of Will dispute is when a person believes they didn’t get enough in the Will.  The legal terminology is not receiving adequate provision for your proper maintenance and support.  In Queensland, there are restricted categories of people who can make an Application to the Court to seek provision.  These types of applications are commonly known as Family Provision Applications.  There are strict time limits in these matters so it is important to seek professional advice early so that informed decisions can be made.

Challenging the validity of the Will

Another common type of Will dispute is where the validity of the Will is challenged.  This may be due to an allegation that the person who made the Will did not have the mental capacity to make their Will or that they were unduly influenced/pressured into making their Will.  These types of challenges require analysis of evidence including medical evidence to determine whether the deceased’s last Wil is valid.  To enable time to obtain the evidence, it may be necessary for a person to urgently file a Caveat in the Supreme Court to prevent Probate of a particular Will being granted.

Executor and Beneficiary Disputes

An Executor’s role is to call in the estate assets, arrange for the valid estate debts to be paid and ultimately distribute the estate to the beneficiaries.  It may sound simple but there are significant and numerous obligations on the Executor who has a duty to all the beneficiaries in the Will.  In some estates, the beneficiaries may not agree with the conduct of the Executor or there may be delays in the estate administration.  The Executor may also be dealing with difficult beneficiaries and may need to apply to the Court for advice and directions.

Executor Dispute

In some estates there is more than one Executor appointed.  On occasion, the Executors may not agree with each other on how a particular matter in the administration of the estate should be dealt with.  If the Executors are not able to resolve their dispute, it can result in delay and significant costs being incurred.  An Application to the Supreme Court may be necessary for advice and directions or even for an Independent Administrator to take over the estate administration. 

Actions of an Attorney

An Executor may need to review and consider the conduct of the deceased persons attorney during their lifetime.  There may be unexplained transactions on the deceased’s bank statements or less assets in the estate than beneficiaries expected.  An Application may need to be made to the Queensland Civil Administrative Tribunal or the Court seeking compensation for the estate if the attorney has failed to adhere to their obligations.   There are strict time limits in these matters so it is important to seek professional advice early so that informed decisions can be made.

What does that clause mean?

In some Wills (particularly DIY Wills), there may be ambiguity or uncertainty about what the deceased intended in a clause in their Will.  This may result in a dispute as the interpretation may mean a person misses out.  If the parties cannot resolve the dispute, an Application to the Supreme Court may need to be made for Orders confirming how the clause should be interpreted.

Intestate Estates – dying without a valid Will

When a person dies without a valid Will, they are said to have died intestate.  There are rules in the legislation to determine who the Administrator of the estate should be (as there is no executor appointed) and who should receive the estate (as there are no beneficiaries nominated).  The Rules of Intestacy may result in disputes including a Family Provision Application.  Another common dispute in intestate estates is whether a person who claims to be a ‘spouse’ is in fact a ‘spouse’ as defined in the legislation.  If they meet the definition of ‘spouse’ it may mean they can Administer the estate and receive the bulk of the estate.  If they do not meet the definition of ‘spouse’ it may mean they receive nothing.

Managing Estate Disputes

Any estate dispute can have long-term implications for the harmony of a family and can result in relationships being fractured beyond repair.

The costs and delay can also be significant.

It is important that you seek professional advice early from solicitors who have knowledge and experience in this specialised area of law so that you know your rights and can make informed decisions.

With the right help, disputes may be able to resolved faster and more costeffectively.

If you need assistance, contact [email protected] or call 07 5443 9600.