In Australia, there are legal avenues available to individuals who wish to contest a will or challenge the distribution of an estate. Although regrettable, such disputes are often unavoidable and sometimes essential to ensure fair outcomes. Understanding these legal processes and the reasons estate disputes arise can help individuals navigate these challenging situations.
Validity Challenges
One avenue for contesting a will is to challenge its validity. This can occur if there are concerns that the deceased lacked the necessary testamentary capacity or mental competence to understand the nature and consequences of making a will at the time of its creation. This may also occur if there is evidence of undue influence or pressure on the deceased to change the terms of their will.
A will may also be contested if it simply fails to comply with the required legal formalities of making and executing a will.
Family Provision Act (FPA) Claims
In Western Australia, FPA claims may be made by eligible persons who believe they have not received adequate provision from a deceased’s estate for their proper maintenance, support, education and advancement in life. These claims seek orders for such provision as the Court sees fit be made from the Deceased’s estate for that purpose.
The rules about who is eligible to make such an FPA claim vary across jurisdictions. In Western Australia, spouses, former spouses, children, and (in limited circumstances) stepchildren and grandchildren are eligible to make a claim for adequate provision. If you wish to make a claim on a deceased’s estate, our experienced Wills and Estates lawyers can assess your circumstances and advise if you are eligible under the relevant legislation.
FPA claims are often successful if an eligible person can demonstrate financial need. Such claims may be resolved privately between the executors, the beneficiaries and the claimant by a Deed of Family Arrangement or through mediation, without progressing all the way to trial.
Reasons Estate Disputes Arise
The most significant reasons that estate disputes arise are existing family conflict, estranged relationships, or blended families. When a loved one passes away, the emotional burden of the loss can complicate these already difficult relationships. FPA claims most often arise when individuals believe that the distribution of an estate was fundamentally unfair.
Another reason that estate disputes commonly arise is that the will of the deceased was out-of-date at the time of their death. If a will is not regularly updated to reflect changes in circumstances, such as marriages, divorces, births, deaths, and changes in significant assets, it can give rise to disputes regarding the deceased’s wishes. Similarly, vague or ambiguous terms in a will can often cause disagreements among beneficiaries.
Disputes can also arise if an executor or trustee fails to carry out their duties properly, including mismanagement of the estate, conflicts of interest, or allegations of misconduct.
Minimising Potential Estate Disputes
There are a number of steps that you can take to reduce the likelihood of your estate becoming the subject of a dispute. The first step is to engage the services of a qualified and experienced Wills and Estates lawyer when drafting your will. This will ensure that your will is not only properly drafted, taking into account legal requirements, but that you are prompted to think about any potential sources of conflict.
It can also be helpful to establish open and clear communication with family members about the contents and intentions of your will. Discussing decisions in advance can provide an opportunity to flag and address concerns and potential conflicts. Such communication can help manage expectations and reduce the likelihood of disputes.
When drafting a will, it is important to use clear and specific language to avoid ambiguity and confusion. Clearly articulating the intended distribution of assets can help minimise potential disputes.
Regularly reviewing the will and updating it as circumstances change can also help ensure its relevance and accuracy. This includes considering changes in relationships, births, deaths, and significant assets.
In cases of potential disputes, exploring alternative dispute resolution methods, such as mediation or arbitration, can provide a more amicable and cost-effective resolution compared to litigation.
Conclusion
Contesting a will or the distribution of an estate can be emotionally and financially draining for all parties involved. Understanding the legal avenues available for contesting a will or challenging an estate, the reasons these disputes arise, and implementing strategies to minimise the potential for disputes can help navigate these challenging situations with greater clarity and efficiency. Seeking professional advice and engaging in open communication can contribute to a smoother administration of the estate and reduce the likelihood of prolonged and contentious disputes.
This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 08 9335 9877 or email [email protected] to arrange an Introductory Consultation with one of our experienced Wills and Estates lawyers today.
