Estate Dispute Resolution
& Litigation
Disputes often arise around the distribution of an estate following a death. Spouses, children or dependents of the deceased may believe that they were not properly provided for under the will, or that the will does not reflect the deceased’s intention. Further disputes may arise over the conduct of the executor.
Whether you are an executor trying to meet your obligations, someone who believes they were not properly provided for under the terms of a will, or a person concerned about the will being followed, we have the experience and knowledge to help. Estate litigation is often highly emotional and tenaciously fought for a number of reasons, not the least of which is that the parties to a dispute often find themselves in a vulnerable and distressed state before the dispute even arises.
Family circumstances and histories are also often very complicated and the disputes that arise in the context of a deceased estate may have been years or even generations in the making. Given the potential ramifications on both a financial and personal level it is important that you engage lawyers that you can trust and who are experienced in working with parties in such fraught circumstances.
We specialize in:
Family Provision Claims
Testamentary Capacity Claims
Disputes about an incapable person’s affairs
Defending a Will
Challenging a Will
More information on Estates Litigation:
In addition to Family Provision Act Claims which are brought when an individual believes they have either been unfairly excluded as a beneficiary of a Will or that any provisions that have been made for them are inadequate, a range of other estate litigation and challenges to a Will can be brought by both beneficiaries and other interested parties.
If you are a beneficiary or an Executor tasked with distributing an estate that becomes disputed this can be a very challenging and stressful time. Our experienced Wills & Estates team are able to advise and guide you in relation to a broad range of estate litigation and to help you achieve, as far as possible, a timely and satisfactory resolution of any dispute.
The main grounds for disputing the validity of a Will that can result in litigation are:
Claims of undue influence
Where one party claims that another party (usually a beneficiary) exerted an unreasonable level of influence over the deceased which resulted in them preparing their Will in a certain way, including leaving assets to the individual who exerted the undue influence. For example, where the deceased was elderly and infirm and leaves a considerable portion (or all) of their assets to a paid carer excluding all family members, the children of the deceased may feel that the carer exerted an undue level of influence which resulted in the Will being drawn in their favour.
Allegations of fraud and/or allegations that the Will (or some part of it) is a forgery
Examples of these types of disputes include where a question is raised as to whether the signatures on the Will are in fact real or forgeries, particularly the deceased’s signature. and where a document is alleged not to have been created or authorised by the deceased but by another person or group of persons.
Claims that the deceased lacked the necessary mental capacity (usually described as testamentary capacity) to make the Will at the time it was executed
These types of claims often arise when the deceased was elderly and sick for long periods of time, or suffered from dementia or some other form of loss of memory.
Other Types of Estate Litigation
In addition to disputes over the validity of a Will, other types of estate litigation include disputes between executors, beneficiaries and even other interested parties (for example the parents of child beneficiaries) over matters such as:
The interpretation of the terms of the Will;
Whether a Will contains an obvious error or mistake. For example, if the Will refers to “my son John” when in fact the deceased only had a daughter named Jane and no other children;
Disputes about whether an executor should be allowed to act in that role;
Disputes between beneficiaries as to how the estate should be administered. These types of disputes often arise when one beneficiary is also the executor of the estate and other beneficiaries have not been appointed as joint executors under the Will and do not agree with how the executor is distributing the assets of the estate;
Where one or more of the beneficiaries would like the executor to be removed and replaced by another party; and
Where one of the beneficiaries is said to have caused or been unlawfully involved in the deceased’s death. For example, in cases where a parent has left their estate to their children in equal shares but one of those children has been charged with an offence in connection with the parent’s death.
If you would like to discuss any of the above with our experienced team, please call (02) 9957 5755.
Estate Dispute Resolution & Litigation Team
Bruce Robertson Jonathon Davis Alex Trevena
Principal Director Principal Director Principal Director
Andrew Robertson Annalisa Gray
Solicitor Probate Paralegal