Estate Litigation – Will Disputes

We have all heard of disputes which can occur in families after a death, and of people "Challenging a Will".

When we talk about Challenging a Will, it can have two meanings. The first is that it is not a valid Will, usually either because the required formalities have not been met, or because the maker of the Will ("the testator") did not have the proper capacity to make the Will.

The second basis for a challenge is under the Succession Act, an Act of Parliament. This allows challenges by certain persons who have received an inadequate benefit or no benefit. This is usually not so much a challenge to the whole Will, but rather a claim to change the provisions of the Will.

(1) Challenging the validity of a Will

If the formalities have not been complied with, the Supreme Court nowadays does have the power to still recognise a document as a valid Will. If there is evidence that the testator did see the document as representing his or her wishes, a challenge based on non-compliance with the required formalities may well fail. In other words, the Supreme Court can approve an informal document as a Will. But as this requires a costly court hearing, it is much better to have a properly prepared Will in the first place. (See our Estate Planning page on this website). If you need to make this kind of application to the court, Quinn & Scattini's Wills and Estates Team has the expertise to assist.

Rather different is the situation where it is the ability of the testator to make a Will that is in question. Usually this is based on a lack of mental capacity; i.e. that the testator did not have the mental ability to understand what they were doing. The typical example of this occurs where it is claimed that an elderly testator suffered from dementia, and would not have properly understood what they were doing in making a Will. In these cases, medical evidence will often provide the answer.

In a similar category are cases where it is claimed that the testator was affected by drugs or alcohol so that they did not know or understand what they were signing.

The harder questions arise if the testator is claimed to have been subjected to pressure; what the law calls "Undue Influence."

Signing a Will is strong evidence that the maker accepts it as a valid document. To set aside a Will on the grounds of Undue Influence, one must show that the Will-maker was so pressured or overcome that the Will does not represent their true wishes and intention. Obviously this is easier to prove when the testator is old and frail, and less likely to be able to resist pressures.

(2) Claiming further provision

Claims under the Succession Act seeking better provision can be made by those who are listed in the Act as potential claimants.

These are:-

  • Husband or wife of the deceased
  • A de facto partner of the deceased
  • A child or step-child (including adult children/step-children) of the deceased
  • Someone who was a dependant of the deceased (subject to certain limited categories).

To succeed, a claimant must show that an adjustment is necessary because it was unfair or inappropriate to treat the claimant the way the Will provided, given the relationship which existed.

The mere fact that unequal provision was made for siblings, does not necessarily mean that a claim will succeed.

Example 

The fact that one adult child was left less than others, could be explained by their financial circumstances compared to their siblings, or by a poor relationship with the deceased. If a Will-maker intends to treat members of a group (such as children) differently from each other, it is a good idea either to make mention of the reason in the Will, or to sign a statement of reasons and leave it with the Will.

The Wills and Estates Team at Quinn & Scattini can advise you about making or defending such claims. In the majority of cases, the Estate pays the legal costs, but in any event we can discuss fee arrangements with you. In appropriate cases, we often conduct claims on a "No Win No Fee" basis.

If you would like to find out how Quinn & Scattini can help you, please call us on 1800 999 LAW (1800 999 529), or email us at mail@quinnscattini.com.au