1300 244 342
BOOK A CONSULTATION
1300 244 342

Limited Offer - Receive a $500 credit towards legal fees for your case.

Will Disputes in Australia: Understanding the Process and Implications

Will disputes are an increasingly common occurrence in Australia, often arising when family members or other interested parties feel they have been unfairly treated in a deceased person’s will. This article aims to provide a comprehensive overview of will disputes in the Australian legal context.

Grounds for Contesting a Will

In Australia, there are several grounds on which a will can be contested:

  1. Family Provision Claims: The most common type of will dispute. These claims are made by eligible persons who believe they need to be adequately provided for in the will.
  2. Lack of Testamentary Capacity: This occurs when it’s believed the testator (the person making the will) did not have the mental capacity to understand the nature and effect of making a will.
  3. Undue Influence: When someone has pressured or coerced the testator into making specific provisions in the will.
  4. Fraud or Forgery: If there’s suspicion that the will is fraudulent or has been forged.
  5. Lack of Knowledge and Approval: When it’s believed the testator did not know or approve of the contents of the will.

Eligible Persons

Each state and territory in Australia have its own legislation regarding who can contest a Will. Generally, eligible persons include:

  1. Spouses or de facto partners
  2. Children (including adopted children)
  3. Former spouses (in some circumstances)
  4. Dependents
  5. In some jurisdictions, grandchildren and members of the deceased’s household

Time Limits

It’s crucial to know the time limits for contesting a Will, these vary by state:

  1. NSW, VIC, QLD, and ACT: Generally 12 months from the date of death
  2. WA: 6 months from the grant of probate
  3. SA: 6 months from the grant of probate
  4. TAS: 3 months from the grant of probate
  5. NT: 12 months from the grant of probate

The Will Dispute Process

  1. nitial Assessment: A lawyer will assess the strength of your claim and advise on the likelihood of success.
  2. Mediation: Many disputes are resolved through mediation, where parties attempt to reach an agreement without going to court.
  3. Court Proceedings: If mediation fails, the matter may proceed to court. The court will consider various factors, including
    1. The relationship between the claimant and the deceased
    2. The size of the estate
    3. The financial circumstances of the claimant
    4. Any promises made by the deceased
    5. The deceased’s wishes, as expressed in the will

Costs of Will Disputes

Will disputes can be costly, costs may include:

  1. Legal fees
  2. Court fees
  3. Expert witness fees (if required)

In some cases, costs may be paid from the estate. However, if a claim is unsuccessful, the claimant may be ordered to pay the estate’s legal costs.

Preventing Will Disputes

To minimize the risk of will disputes, testators can:

  1. Seek professional legal advice when drafting a will
  2. Clearly document reasons for any unequal distribution
  3. Consider discussing the will’s contents with family members
  4. Regularly update the will to reflect changed circumstances
  5. Consider including a no-contest clause (though these are not always enforceable)

Role of Executors in Will Disputes

Executors play a critical role in will disputes, acting as the primary defenders and administrators of the estate. Here’s an expanded explanation of their key responsibilities:

Defending the estate against claims

Executors are responsible for protecting the integrity of the will and the deceased’s wishes. This involves:

  1. Assessing the validity of any claims made against the estate
  2. Gathering evidence to support the will’s provisions
  3. Engaging legal representation if necessary to defend the estate in court
  4. Participating in mediation or settlement negotiations to resolve disputes

The executor must try to privately negotiate an outcome with any claimants before proceeding to court, as this is often in the best interest of the estate and beneficiaries.

Remaining impartial

Executors must act objectively and in the best interests of the estate, even if they are also beneficiaries. This includes:

  1. Treating all beneficiaries fairly and equally
  2. Avoiding conflicts of interest or the appearance of bias
  3. Making decisions based on the will’s instructions and legal requirements, not personal preferences
  4. Seeking professional advice when faced with complex situations or potential conflicts

Providing relevant information to the court

In the event of a court proceeding, executors are responsible for:

  1. Supplying accurate and complete information about the estate’s assets and liabilities
  2. Presenting evidence related to the deceased’s intentions and circumstances
  3. Responding to court orders for information or documentation
  4. Testifying if required about the administration of the estate

Implementing court orders or settlement agreements

Once a dispute is resolved, either through court decision or settlement, executors must:

  1. Promptly carry out the terms of the court order or agreement
  2. Adjust the distribution of assets as required
  3. Ensure all legal and tax obligations are met in implementing the resolution
  4. Communicate the outcome and its implications to all beneficiaries

Additional responsibilities of executors in will disputes include:

  1. Maintaining clear and accurate records of all actions taken and decisions made
  2. Communicating regularly with beneficiaries about the progress of the dispute and estate administration
  3. Seeking professional legal and financial advice to ensure proper handling of complex matters
  4. Balancing the need to defend the will with the cost to the estate of prolonged litigation

It’s important to note that executors can be held personally liable for mismanagement of the estate or breach of their duties. Therefore, they must act diligently, honestly, and in good faith throughout the dispute resolution process

Will disputes can be complex, emotionally charged, and financially significant. Understanding the grounds for contesting a will, the process involved, and the potential implications is crucial for anyone considering challenging a will or being involved in estate planning. While the Australian legal system provides avenues for addressing perceived unfairness in wills, it also respects the wishes of the deceased as expressed in a valid will. Balancing these competing interests often requires careful navigation of legal principles and family dynamics. Given the complexity of will disputes, seeking professional legal advice is highly recommended.

 

Contact us today at 1300 244 342 or send us an email at admin@kingsfordlawyers.com.au and one of our will lawyers will be happy to assist you.

 

Share this article

Share on facebook
Facebook
Share on twitter
Twitter
Share on linkedin
LinkedIn
Share on email
Email

Recent Posts

What are the Possible Outcomes of a Federal Criminal Case?

•
July 30, 2024

In the 2022-23 financial year, federal authorities in Australia finalised 9,232 criminal cases, marking a significant 14% increase from the previous year. …

What to do if your company is insolvent

•
June 17, 2024

Insolvency arises when a company faces challenges meeting its debt obligations on time. When a company’s debts outweigh its available cash flow, …

Understanding Bail Conditions in Australia: What You Need to Know

•
June 17, 2024

Bail conditions play a crucial role in the Australian legal system, influencing the freedom and responsibilities of individuals awaiting trial. This comprehensive …

How we can help?

To speak with a lawyer from Kingsford about your case, call us on 1300 244 342 for a confidential, obligation-free chat.

WE SPEAK – ENGLISH, ITALIAN, MANDARIN, MACEDONIAN, POLISH, AND RUSSIAN

Call Us Now
1300 244 342
Book Consultation
Facebook-square Linkedin-in
Company
Services
Contact
Addresses
Melbourne Office

55 Hudsons Road, Spotswood VIC 3015

Queensland Office

2 Currumburra Road, Ashmore Qld 4214

India Office

E-13, UPSIDC, Site-IV, Greater Noida India

UK Office

343791 York House, Green Lane West,
Preston PR2 1XB

© Copyright 2024 KINGSFORD LAWYERS | ALL RIGHTS RESERVED

BOOK CONSULTATION

Book Appointment

Schedule A Free Consultation with Our Lawyers and Receive $500 Credit Now

Reach out to us, and let’s work together towards a solution that brings you peace of mind and a positive step forward.

How did you hear about us ?

Terms and Condition Apply