Estate Disputes

Contesting a will/Family provision application

An eligible person who believes they have not been adequately provided for in a deceased’s will can make an application to the Court to receive a share, or a larger share, of the deceased’s estate.  This is known as a family provision application or contesting a will.

The Court can make a family provision order if it is satisfied that the deceased did not make adequate provision for the applicant’s proper maintenance, education or advancement in life.   The Court will consider a number of factors in making its decision, including the applicant’s financial position, the relationship between the applicant and the deceased, and the size of the deceased’s estate.

Queensland and NSW have substantially different laws in relation to family provision applications.

Making a family provision application in Queensland

A family provision application is generally made in Queensland if the deceased was living in Queensland at the date of their death and owned assets in Queensland, or they were living elsewhere but owned assets in Queensland.

If you intend to make a family provision application, you must give notice to the executor within 6 months of the date of the deceased’s death, and file your application with the Court within 9 months of the deceased’s death.

You are eligible to make a family provision application in Queensland if you are:

• A child of the deceased, including adopted children and step-children.
• A spouse of the deceased, including de-facto partners and civil partners.  To be recognised as a de facto partner, the person must have been living with the deceased as a genuine couple for a continuous period of at least 2 years up until the deceased’s death.
• A person who was wholly or substantially maintained or supported by the deceased at the time of their death and is also a parent of the deceased, a parent of a surviving child under the age of 18 of the deceased, or a person under the age of 18.

Making a family provision application in NSW

A family provision application is generally made in NSW if the deceased was living in NSW at the date of their death and owned assets in NSW, or they were living elsewhere but owned assets in NSW.

A family provision application must be filed within 12 months of the date of the deceased’s death.

The categories of people who can make a family provision application are broader than in Queensland and include:

• A child of the deceased, including adopted children and step-children.
• A spouse of the deceased, including a husband, wife and de facto partner. There is no 2-year living together requirement in order to be recognised as a de facto in New South Wales.
• A former spouse of the deceased.
• A person who was at any time, wholly or partly dependent on the deceased, and is a grandchild of the deceased or was a member of the deceased’s household.
• A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

Notional estates in NSW

The NSW legal system has a unique feature which allows the Supreme Court of NSW to fund a family provision order from assets which did not directly belong to the deceased at the time of their death.  This is called a notional estate.

Challenging the validity of the will

When a person challenges the validity of a will, this means that they are challenging the actual existence of the will and the circumstances in which it came to be made.  A will can be challenged on a number of grounds, such as lack of testamentary capacity and undue influence.

Lack of testamentary capacity

One of the more common reasons for challenging a will is that the deceased did not have the mental capacity (known as ‘testamentary capacity’) to make their will at the time the will was made.  A person has testamentary capacity if they:

• understand they are making a will and the significance of what that means;
• are aware of the nature, extent and value of the assets and liabilities which make up their estate;
• understand which people would have a claim on their estate; and
• are not affected by a disorder of the mind or delusion which means the will is not one they would have made if they were of sound mind.

Examples of a person lacking testamentary capacity may include a person with a severe mental disability or a person in the advanced stages of dementia.

If a person does not have testamentary capacity but needs to make or change a will, click here to read about the available options.

Undue influence

A will can be challenged on the ground that the deceased was unduly influenced in making their will.  To prove that there was undue influence, it must be demonstrated that someone coerced the deceased into making or changing their will so that they did not make their will freely and voluntarily. This is very hard to prove.

For example, an elderly woman was bullied by her adult son into changing her will to heavily favour the son, despite her wishes to distribute her estate evenly between her three children.

Who can challenge the validity of a will?

A person can only challenge a will if they:

• were named as a beneficiary or executor in the deceased’s last will;
• were named as a beneficiary or executor in the deceased’s earlier will; or
• would have been a beneficiary of the deceased’s estate if the deceased died without a valid will.

What is the process for challenging a will?

If you wish to challenge a will, it is important to do as soon as possible after the deceased’s death and before probate has been granted by the Court.  Click here to read about the granting of probate.

The first step is to file a caveat over the estate with the Supreme Court.  This will prevent probate from being issued and proceedings can then be commenced to establish the validity of the will. To determine whether you have legal standing to lodge a caveat, and for assistance with the preparation and filing of a caveat with the Court, please contact our estate litigation team.

What happens if a will is found to be invalid?

If the will is found to be invalid by the Court, then the estate will be distributed according to the next most recent will (if there is one).  If there is no earlier will, then the rules of intestacy apply to the estate and letters of administration are be applied for.  Click here to read about those processes.

Individuals without capacity

If a person has lost capacity and needs to make a will, or they have an existing will which needs to be changed, there are court and tribunal processes available to help them.

Statutory wills

The Supreme Court of each state has the power to make, alter or revoke a will on behalf of a person who does not have testamentary capacity.  This is known as a ‘statutory will’.

A relative, close friend, carer, trustee or guardian of the person lacking testamentary capacity can make an application to the Supreme Court for the granting of a statutory will.

The Court will only authorise the making of a statutory will if:

• The person lacks testamentary capacity;
• The proposed will (or alteration or revocation of the existing will) accurately reflects the intentions of the person as if they had testamentary capacity;
• It is reasonable in all of the circumstances for the court to authorise the will and make the orders;
• The person is alive. A statutory will cannot be made if the person has died.

Applications to appoint a financial administrator of guardian

Another tool available to those individuals caring for or otherwise assisting people lacking capacity is an application for the appointment of a financial administrator or guardian.  In Queensland, these applications are made to the Queensland Civil and Administrative Tribunal and in NSW, they are made to the NSW Civil and Administrative Tribunal.

Family members, close friends, professionals or anyone who has a genuine and continuing interest in the welfare of the person can make an application to be appointed as a financial administrator or guardian.

A financial administrator or guardian will only be appointed if:

• The person has impaired capacity;
• There is a need for a guardian or administrator; and
• If a guardian or administrator is not appointed, the person’s needs will not be adequately met or their interests will not be adequately protected.

Once appointed:

• A financial administrator can make financial decisions, and legal decisions related to financial matters, on behalf of the person.

A guardian can make decisions related to the person’s health and lifestyle, and legal matters not related to financial matters or property.

Promissory estoppel claims

A promissory estoppel claim is where a person claims against a deceased’s estate on the basis of promises made by the deceased to the person during their lifetime.

It is something we tend to see a lot more of in agricultural families, due to the unique intergenerational nature of farming businesses in which different generations work alongside each other with the expectation that significant assets (generally parcels of land) will be handed down through the generations.

What needs to be proved in a promissory estoppel claim?

1. The deceased made a promise to a person during the deceased’s lifetime.
2. The person relied on the promise.
3. The person suffered detriment as a consequence of relying on the promise, and the detriment they suffered was reasonable in the circumstances.
4. Given the reliance on the promise, it would be unconscionable if the deceased estate was not bound by the promise.

For example, a farmer made continual verbal promises through his lifetime to his adult son that he would inherit the farm upon his death. The son worked in the farming business for 30 years, receiving minimal wages and foregoing other employment and financial opportunities on the presumption that one day he would inherit the farm.  The father died and did not leave anything to the son in his will.  The son made an equitable estoppel claim to the Supreme Court and was awarded the farm.

Roles & obligations of an executor in a disputed estate

The executor is the person appointed by the deceased in their will to oversee the administration of the estate.  Click here to read about the general duties of an executor in the administration of an estate.

When a dispute arises over an estate, the role of the executor is to ultimately defend the deceased’s estate against the claim being made against the estate.  If legal proceedings are issued, the executor will be named as a defendant and court documents will be served on them.

In defending a claim against the estate, the executor must:

• Respond to the legal proceedings served on them and file the necessary documents (e.g. affidavits) in response.
• Assist in obtaining the evidence relevant to the dispute.
• Preserve the deceased’s estate which means ensuring that the assets of the estate are not distributed until the claim has been determined by the Court or settled by the parties.
• Act reasonably which may include negotiating a settlement where appropriate, so as to avoid legal costs depleting the estate. This may be particularly relevant where the size of the estate is small.

The role of mediation in a disputed estate

Mediation is an effective method of alternative dispute resolution which can be used to settle disputes of estates outside a courtroom.

A mediation is a confidential meeting between the parties to the dispute (i.e. the person making the claim against the dispute, the executor and their respective lawyers) which is overseen by a trained mediator (often a lawyer, barrister or retired judge).  The mediator does not have the authority to make binding decisions but instead works with the parties to help facilitate a settlement which is acceptable to everyone.

Mediation can take place:

• as an alternative to issuing legal proceedings; or
• after legal proceedings have been issued to avoid the matter proceeding to a trial.

What are the benefits of using mediation in a disputed estate?

• As disputes over estates generally arise between family members or other people who may have once held close relationships, mediation provides a forum in which grievances can be aired in a private setting and attempts can be made to repair relationships.
• Avoids or minimises the costs of litigation and generally provides a faster outcome than litigation will.
• Gives the parties the power to resolve the dispute on their terms, rather than leave it in the hands of a judge.