Australia: The top 5 estate disputes and how to resolve them

When someone dies, leaving behind assets, disagreements between those who are left behind can often arise, whether or not a will is in place. Sometimes disagreements can intensify precisely because there is a will in place.

As one of the leading estates practices in Adelaide, we have seen just about every problem and dispute. This means we are able to predict with some certainty the ranges of outcomes that the Supreme Court may reach should any given dispute go all the way to trial – which, thankfully, is the vast minority of cases (probably less than 5 per cent).

The larger the estate, the more scope for dispute

The larger the estate, the more animosity there may be between the parties, and the more legal issues that may be involved in the matter, the more likely it will "drag out" and prove costly to the estate and as a consequence to the beneficiaries who are to (hopefully) share in the estate.

Our top 5

The top 5 estate disputes we've seen over the years and the solutions we have provided are as follows:

  1. The executors are unduly delaying in applying for Probate.

One of the primary roles of executors is to obtain a grant of Probate, which then allows them to officially administer the estate and divide the estate assets. There is no legal time frame required, although there is a rule of thumb called "the executor's year" which assumes that executors have up to a year to apply for Probate.

Any longer than this, then expectant beneficiaries may apply to the Supreme Court to seek an order compelling the executor to apply for Probate within a given timeframe.

  1. The beneficiaries cannot agree on what is to happen to the estate property.

Most estates in South Australia comprise the family home, invariably freehold, some investments and personal effects. While the investments and personal effects can (hopefully) be dealt with without too much dispute and delay, the family home is often the main focus of disagreement. One or more beneficiaries may wish to retain the property, while others may be looking to sell the property and realise some much wanted or needed cash.

The deceased's will may give certain beneficiaries an option to purchase the family home from the estate within a certain time frame, which you would think would short circuit most disputes (depending on the clarity of the relevant clauses in the will).

However, even if there is no such option spelled out in the will, there is no reason why a beneficiary or beneficiaries cannot agree to buy the other beneficiaries out – provided all parties can agree on a value or a valuer who can conduct a valuation. Once this is agreed, the agreement can be set out in a Deed.

  1. There have been unauthorised or unfair transfers of assets during the life of the deceased.

It is common for a testator (the person making their will) to appoint a seemingly trusted child or other relative as their attorney under a power of attorney as well as being their executor.

When the testator dies, disputes sometimes arise where beneficiaries believe there have been unauthorised or suspicious transfers of assets (for example, bank monies and even land) during the lifetime of the deceased, resulting in a reduction of the estate to be divided upon death.

What can often follow in such disputes is a forensic exercise of working out which transfers were authorised or lawful and a "clawing back" of any unauthorised transfers back into the estate. The executor may be removed from their role as executor or still allowed to apply for Probate but on the basis that they receive a lesser share in the estate and the other beneficiaries a proportionally larger share.

  1. The executor appointed under a will has apparently influenced the executor in making the appointment or received a greater benefit than the other beneficiaries.

As people get older, they increasingly rely on apparently trusted members of their family to take them shopping, or to doctors' appointments, the bank and, of course, to lawyers' offices for the purpose of getting their estate planning in order.

Some situations may be entirely proper and above board, while other situations may later be proved to be ones in which there has in fact been undue influence or duress brought to bear by the executor or beneficiary upon the testator to make their will a certain way.

Whether such a situation makes the will invalid or otherwise challengeable depends on the facts of each case. If the will is proved invalid, then an earlier will (if available) prevails, and if there is no earlier will, then the deceased is said to have died "intestate" (without a will) and therefore the State decides how their estate is to be divided.

Most of these cases resolve in an agreement between the interested parties, with or without the approval of the Supreme Court, to alter some of the terms of the will but otherwise leaving the will intact.

  1. Will kit wills

If a will is prepared by a law firm, especially a law firm with experience and expertise in estate planning, it is safe to say that there is a lower probability that the validity of the document will be disputed later on (although the provisions of the will may still result in an inheritance claim where a beneficiary asserts they have been left with inadequate provision).

However, the same cannot be said for will kit wills (also called "DIY wills" or "homemade wills" or "informal wills"). It is our experience that the majority of home made wills have one or more problems present, from ambiguity in the terms of the will, to doubts in terms of how the document was executed by the deceased and whether it was properly witnessed, to issues of undue influence or duress (referred to above) or even forgery.

The more unusual, or suspicious or error-riddled a will is, the more people will seek to challenge the will on a number of fronts, which is why will kit wills must be avoided at all costs.

As with other estate disputes, a will kit will dispute often can often be resolved on the basis that the will is deemed invalid, or otherwise valid but the terms of the will are varied by agreement or as ordered by the Supreme Court.

Conclusion

Most estate disputes can be avoided, before the death of the testator, in the lawyer's office when the testator makes his or her will, by the lawyer asking the right questions, getting the right information, giving (hopefully!) the right advice and obtaining the deceased's proper instructions in making their will.

Some estate disputes are simply unavoidable, because human nature can often get in the way of the execution of an otherwise sound estate plan. Many more estate disputes are inevitable because there has been bad, or non-existent, estate planning in the first place.

As estate lawyers, our role is to act in the best interests of our client, whoever they may be in the dispute, by giving them independent and considered advice, and assisting them reach an outcome that is just and equitable and as quickly and cost-efficiently as possible.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions