The death of a family member is distressing enough without there being arguments about who should have got what out of the deceased’s estate.

Fighting estate disputes in court involves a significant investment of time, money and emotion.  More often than not, it involves the airing of dirty family linen in open court.  If taken to court, legal and related costs can quickly eat into the assets of the estate.

What are Will and Estate Disputes About?

Estate disputes may arise when:

  • The Will intended to be relied upon is not the last Will of the deceased.
  • The deceased did not have the testamentary capacity (mental ability) to have prepared the Will relied upon.
  • Parts of the Will have been changed after the deceased had signed it.
  • The Will was signed by the deceased under undue influence.
  • The Will relied upon had been revoked by the deceased.
  • The provisions of the Will are unclear and/or cannot be understood.
  • The deceased did not make adequate provision for a particular person within their Will (a Family Provision claim).

In all estate disputes, the cases depend heavily on the particular factual circumstances.

So, it is important that detailed evidence is available to substantiate a claim on an estate.  If a claim is made on an estate, the executor is responsible for defending the claim.

The executor must either settle the claim or defend the Will and its existing provisions.

Many disputes arise over dissatisfaction with a gift or gifts received by one or more beneficiaries from an estate.

In each state and territory there are time limits within which to bring a claim on an estate, usually measured from the date of death of the deceased.

There are also specified classes of eligible persons who can make a claim on an estate.

Variation of the provisions of a Will is at the discretion of the court after it has considered all the available evidence.

There is no magic formula for the calculation of a claimant’s entitlement to an estate.

Qualifying as an “eligible person” does not automatically guarantee that the court will vary the provisions of a Will.

It is best to have an estate dispute addressed and resolved before the assets of the estate are distributed.  This avoids difficulties that may arise if it is necessary to redistribute the estate’s assets or the assets have been dissipated by beneficiaries.

Advantages of Negotiating an Out of Court Settlement.

We believe that the best outcome for executors and competing beneficiaries is to negotiate a final, mutually acceptable agreement, usually in the form of a Deed of Family Arrangement.

This is an agreement that documents how the parties have agreed to alter the provisions of the Will and the distribution of the assets of the estate.

Negotiating an out of court settlement provides the following advantages:

  • Minimising cost and avoiding further family conflict within the adversarial court system.
  • Preserving and maximising the available assets of the estate for division rather than wasting it on unnecessary legal and related costs.
  • Allowing the parties to maintain control over their lives rather than have a decision imposed upon them by a court.
  • Providing a faster and less emotional process resulting in a better opportunity for the salvaging of family and other relationships.

CDMC can assist by:

  • Providing an impartial facilitator or mediator to assist in the necessary but difficult discussion and the negotiations that follow.
  • Ensuring that the parties are able to access all the information they need to negotiate equitably.
  • Listening to the needs of the parties and providing expert guidance and direction.
  • Ensuring that the parties are able to access all relevant advice prior to reaching any final settlement.
  • Providing information on how the parties can finalise agreements.