If a person dies with a valid Will in place, his or her estate is usually distributed according to their wishes – as you would expect.
We should emphasise that most estates are largely uncontested or perhaps have only a few issues which can be resolved once the parties come to understand the legal principles that apply. An experienced Estate Lawyer can help in this regard and in the process avoid unnecessary cost and misunderstanding
Estates can be contested and claims can be made against the estate in certain circumstances.
There are three main types of claims:
1. There is a Will but someone has been (or feel that they have been) left out of a Will unfairly, or not adequately provided for.
The “someone” must fall into the category of ‘eligible persons’ as defined in the Succession Act 2006 to make a claim on this basis.
‘Eligible persons’ basically are limited to spouses (both married or de facto) at the time of death, child (minor or adult), a person who was at any particular time wholly or partly dependent on the deceased, a grandchild who at some time was a member of the household of which the deceased was a member, or a person with whom the deceased person was living in a close personal relationship at the time of the deceased’s death and a former spouse.
Unless there are unusual circumstances, other more remote relatives do not get a guernsey – they are not eligible persons.
Just because someone is an “eligible person” does not mean they will be successful in their claim. The provisions of the Will stand unless the Court decides otherwise.
The Court has a number of factors to take into account when deliberating whether or not to make provision for a claimant out of an estate. The testamentary freedom of a “wise and just” testator is to be balanced with the testator’s ‘moral duty’ to provide for certain persons within the eligible persons category.
The Court will often place itself in the position of the testator to consider the relevant factors surrounding the creation of the Will. The Court will consider a range of issues including the needs of claimants, their health and their relationship with the deceased.
If you are thinking of leaving someone out of your Will who could make a claim as an eligible person, you should talk to an estate planning lawyer.
Similarly, if you yourself have been left out of a Will or not adequately provided for, talk to an estate lawyer about your eligibility as defined by the Act, and the possible remedies and whether they apply.
2. There is a Will, but the will maker’s capacity at the time of the making of the will is in doubt.
Testamentary capacity has been the subject of litigation for centuries. A case in 1861 called Banks v Goodfellow is still the guide to what has to be established to test a will maker’s capacity. The capacity test requires a testator to understand:
1. the nature of the Will and its effect;
2. the extent of the property of which they are disposing under the Will; and
3. the persons for whom they would usually be expected to provide.
This seems straightforward enough, however as is often the case “proving a negative’ – lack of capacity – can have its challenges.
You should contact an Estate dispute lawyer to assist you to assess the evidence of capacity or otherwise.
On the other side of the equation, when a Will is being made it is important that an experienced Estate Lawyer take appropriate steps to assess and record matters that may be relevant to potential capacity issues, especially with older will-makers.
3. There is a Will, but you feel that a will-maker changed his or her Will under duress or undue influence
Coercion is the big issue that is emerging in will disputes.
People are living longer, becoming frail in the later years, becoming dependent on family members. There seem to be more family dysfunction and greater misconceptions about “entitlements”. These factors together with greater accumulated wealth are factors leading to elder abuse becoming more pervasive.
A test of undue influence was set down in another very established case of Wingrove v Wingrove (1885).
In this case the Court said “To be undue influence in the eye of the law there must be – to sum it up in a word – coercion… The testator is in such a condition that if he or she could speak his or her wishes to the last, he or she would say “This is not my wish but I must do it”.
If you believe that a will-maker was under pressure to make provisions in a Will because of manipulative behaviour of a potential beneficiary, you should talk to our Estates team about challenging the Will.
These examples of contested estates are not exhaustive, but are the most common kinds of estate disputes.
If you have any questions about contested estates, whether family provision claims, capacity issues or undue influence issues, you should call our Estates Team at Matthews Folbigg on 9635 7966 or email us at estates@matthewsfolbigg.com.au
Estates can be contested and claims can be made against the estate in certain circumstances.
