Resolving Will Disputes 101

Will disputes are one of the most common family law matters that cause sour relationships between family members. Let’s admit it – we all want to inherit something from our older relatives when the time comes. However, some family members may wish to acquire more than what they need.

Will disputes in Australia are a sensitive matter, as they often involve family dynamics, relationship breakdowns, and wealth changing hands across generations.?

Who Is an Executor?

An?executor?is a eligible person responsible for carrying out the wishes of the deceased after their death. This involves a range of tasks, including:

• Locating and securing the deceased’s assets
• Paying off debts and taxes
• Distributing the remaining assets to beneficiaries
• Filing legal paperwork and navigating probate court

Moreover, the executor has the duty to uphold the Will, act impartially when defending the Will, communicate effectively, cooperate and negotiate, comply with regulations, and protect the estate.

Why Do Will Disputes Happen?

While “family feuds” might encompass a wide range of motivations, let’s unpack the specific ways these and other factors can trigger a Will contest:

1. There might be undue influence. This involves pressuring the deceased through threats, emotional manipulation, or exploiting their vulnerability due to illness or age.

2. The existence of unfair provisions. There are instances when close family members are omitted, completely or leaving them insignificant portions. Thus, this can spark legal challenges, especially if there’s no justifiable reason.

3. There are formal flaws. Improper witness procedures (e.g. missing signatures, lack of legal? capacity), forged signatures, and mistakes and ambiguities in the Will are some of the formal flaws that are usually disputed.

4. Lack of capacity. If the deceased suffered from dementia, Alzheimer’s, or other cognitive impairments, their mental capacity to create a valid Will at the time of signing may be challenged.

Understanding Family Provision Claims

Not everyone can contest a Will.?Family provision claims, for example, are reserved for specific individuals:

• Immediate family members. Children, spouses, or de facto partners can claim if they were inadequately provided for in the Will.
• Former spouse. In some cases, former spouses may be eligible to make a family provision claim.

Section 57?of the Succession Act 2006 (NSW) provides the full list of eligible persons.

Tips for Navigating the Storm:

Contesting a Will can be emotionally draining and financially demanding. Here are some tips to help you stay afloat:

• Prioritise communication: Keep all beneficiaries informed and try to maintain open communication, even if it’s challenging.
• Manage your well-being: Don’t neglect your own mental and physical health during this stressful time.
• Seek support: Consider professional counselling or support groups to deal with the emotional burden.
• Trust your?legal team: Work closely with your Will and probate lawyers and follow their guidance throughout the process.
• Prevent time constraints: Strict time limits apply to Will disputes and may cause time constraints.