6 frequently seen Will disputes and how resolution might be achieved

Will disputes often arise over when and how a deceased's estate is to be divided. Below we explore some of the types of disputes that arise and how they might be resolved.

1. The Will does not make reasonable financial provision for an individual

Where a person has been left out of a Will or has not been adequately provided for, they can contest it by seeking family provision orders.

To dispute a Will on this basis, it is necessary to be 'eligible'. Broadly, this means the Will-maker was a spouse or former spouse, a parent, de facto partner, dependant grandparent or someone with whom there was a close personal relationship. A family provision order requires a sufficient amount to be set aside from the estate to provide for a successful claimant's maintenance, education and advancement.

A Court will consider several factors, including the claimant's financial position, age and relationship with the Will-maker.

The Court expects that mediation is undertaken to see if a settlement can be reached with the executor. If so, the settlement will be adopted as a family provision order.

2. The Will is not thought to be legally valid

Sometimes beneficiaries do not believe a Will is valid. This uncertainty can occur for a number of reasons, including:

(i) The Will has been drafted incorrectly

Evidence shows that the Will was not prepared correctly regarding the formal legal requirements. The potential for such problems increases significantly when people prepare their own Wills or use off-the-shelf Will kits.

(ii) Undue influence has been applied to the Will-maker to write or change a Will in a particular way

If a family member, friend or carer unduly influenced the deceased about their estate planning, a Will created under duress or undue influence is challengeable and may be declared invalid. If proven, earlier versions of a Will may apply, or intestacy rules will dictate how the estate will be distributed.

(iii) The Will-maker is not believed to have had the requisite mental capacity to make a valid Will.

What constitutes someone having the so-called testamentary capacity is not always straightforward. As individuals live longer, issues surrounding the mental ability to prepare a Will will likely be more frequent. Sometimes solicitors may advise the Will-maker to obtain a medical opinion on their capacity to make a Will. This reduces the chances of a challenge, although there will still be cases where interested parties will question whether the Will-maker sufficiently knew what they were doing at the time they executed the Will.

In particular circumstances, the Court can order a statutory Will for someone who lacks the mandatory testamentary capacity.

3. Rectifying a Will that has been drafted incorrectly

Even though the quality of drafting Wills may be high in some limited cases, the Court can rule that the original Will can retrospectively be amended by rectification proceedings. These can only be used to correct an error or failure to understand the Will-maker's intentions. It is not a means of attacking a Will as such but rather a way of dealing with mistakes.

In NSW, an application for rectification must be made within 12 months of the date of death unless the Court considers it necessary to extend the timeframe. The document which is sought to be rectified must stand as a valid Will. Rectification cannot convert an otherwise invalid Will into a valid one.

4. Constructing a Will where the testamentary intention is unclear

Construction of a Will is the process which attempts to determine what the Will-maker meant if the intentions are not clear.

Unlike rectification, where a Will can be rewritten, proceedings for construction can only give meaning to the words used in the Will. This can include using extrinsic evidence to assist in interpreting ambiguous language used in the Will.

While there are no statutory time limits in applications for constructing a Will after an estate has been distributed may cause difficulties which may cause the Court to decline to consider a claim.

If the process cannot make sense of a Will, it may lead to gifts and other clauses failing, which may lead to the need to apply the rules of intestacy as if there was not a Will to some or all of the estate's assets.

5. The executors are too slow in administering the estate

Executors have specific responsibilities to undertake, including the distribution of the estate's assets. Their duties will usually involve having to apply for a grant of probate. If the executor unreasonably delays an application beneficiaries can apply to the Supreme Court to set a deadline for obtaining a grant. If the executor fails to do so, beneficiaries can attempt to have the executor removed.

Complaints from beneficiaries can arise because of the perceived slow progress being made by an executor in administering the estate. Sometimes this can be just a misunderstanding of what is involved rather than incompetence or being dilatory. A key for executors is to manage expectations and keep beneficiaries informed.

6. The executors are acting inappropriately

It is important when making a Will to ensure that those persons selected to administer the estate can be relied upon to devote the necessary time needed. However, differences of opinion and conflicts of interest can arise between executors, especially if they are also estate beneficiaries. It may be the case that the executor is considered not following the Will and may have made unauthorised transfers of assets.

If necessary, the executor in question can be asked to stand down, and in extreme cases, an application can be made to the Court to remove the executor so that progress can be made to wind up the estate.

Contact our Will Dispute Lawyers based in Sydney, NSW

Will disputes often arise but can usually be prevented by the careful drafting of a Will, or resolved with the cooperation of beneficiaries and help from professionals. At Szabo & Associates Solicitors, we can provide expert help in all aspects of Wills, probate and succession matters. Please call us on 02 9281 5088 or complete the online contact form.