Disputed Estates

Losing a family member or a loved one can be brutal and unfortunately it is not uncommon for a death to cause disruption within the family, especially when it comes to the distribution of the deceased’s property.

Estate disputes typically include:

Challenges to the validity of a Will
Disputes over the interpretation of a Will
Challenges to the appointment of an executor
Testator’s family maintenance claims made by an eligible person in circumstances where they:
- were excluded from a Will;
- were left a smaller amount in the Will than anticipated;
- were promised something which was not left to them in a Will; or
- will not receive anything based on the rules of intestacy where the deceased person had no Will at the time of their death (they died ‘intestate’).

All families are different and the circumstances leading to a disputed estate can vary considerably. Each case requires a legal approach, and it is important to work with a lawyer in handling estate disputes to ensure the best possible outcome.

Have you been left out of a Will?

If you have been left out of a Will or have been unfairly treated in terms of the amount of your inheritance, you may be eligible to make a claim against the estate. The Administration and Probate Act 1958 in Victoria includes the following people who may be eligible to make a testator’s family maintenance claim:

Current spouse or domestic partner of the deceased
Children, stepchildren, and those treated as a natural child of the deceased
A former spouse or domestic partner of the deceased, in certain circumstances
A registered caring partner of the deceased
Grandchildren of the deceased, in certain circumstances
In some situations, a spouse of a child of the deceased

It is important to note that your eligibility to make a claim can vary depending on your particular circumstances and strict time limits apply if you wish to make a claim. Accordingly, we recommend discussing your situation with us as soon as possible. In many cases, a claim can be settled through negotiation or mediation, without having to go to Court.

In determining whether to make a family provision order, the Court will consider a range of factors. These may include, but are not limited to:

The deceased’s Will, or other evidence of a deceased’s intentions, including reasons why they have not included or not provided further for the claimant.
The relationship between the deceased and the claimant.
Any obligations or responsibilities of the deceased to the claimant, any other person who could bring a claim, and the beneficiaries of the estate.
The financial circumstances of the claimant.
The size of the estate and any liabilities of the estate.

Challenging the Validity of a Will

A Will may be challenged on the grounds that the person who made it did not have the mental capacity to understand what they were doing at the time, or that they were unduly influenced by another person. It may also be challenged if there are concerns about the way in which the Will was executed, such as the absence of witnesses or signatures. To successfully challenge the validity of a Will, it is important to provide clear evidence to support your claim.

Disputes over the Interpretation of a Will

Disputes over the interpretation of a Will can arise when there is ambiguity or confusion about the meaning of certain clauses. This can be particularly challenging when a Will is poorly drafted or contains conflicting provisions. A lawyer can help with interpreting the language of a Will to determine the intentions of the will-maker. Alternatively, the Court may need to determine ambiguous provisions.

Challenges to the Appointment of an Executor

Challenges to the appointment of an executor can arise when there are concerns about an executor’s suitability for the role, or if there are conflicts of interest. It is important to work with a lawyer who can advise on the process for challenging the appointment of an executor and can assist in putting forward an alternative candidate.

Estate disputes can be complex and emotional. It is important to seek legal advice early in the process to ensure the best possible outcome. We are experienced in handling estate disputes and can provide valuable guidance on the legal process, advise on potential outcomes, and assist in preparing a case for Court, if necessary.

If you need assistance, contact [email protected] or call 03 9741 3777.