The purpose of a Will is to dispose of a person’s property in accordance with the deceased’s last wishes. A properly formulated Will is a tremendous help to those we leave behind. Conversely, leaving a slipshod or invalid Will, or no Will at all, can create a big headache for the people we care about.

Unfortunately, Australian courts deal every day with disputes between family members over Wills. It is a mistake to think that only dysfunctional or estranged families fall into dispute – Wills are often discussed in circumstances of grief, and hardly catch people at their most sensible. It is therefore important to carefully plan your affairs, to ensure that your wishes are followed, and that your family members have no reason to argue.

Estate planners work hard to avoid disputes over Wills before they arise. Three common forms of dispute which they are careful to guard against are outlined below:

1. Issues with the Executor

Executorship is not a duty which comes at a time of one’s choosing. Consequently, the most common complaint about Executors is that they are doing things too slowly. People commonly appoint family members to act as their Executor – while family members may be familiar with the Will-maker’s assets and the beneficiaries of the Estate, they may not be as familiar with the technical elements of dealing with an Estate, such as the legal obligations and protections an Executor has, or the tax consequences of certain assets within the Estate. People unfamiliar with Estates can be surprised by how long it can take to administer and finalise a deceased Estate, usually 6 months at a minimum.

Another, more serious, complaint sometimes levelled against Executors is that they have in some way improperly disposed of Estate assets. This need not be caused by the Executor’s sticky fingers – an inexperienced Executor can inappropriately dissipate funds in a number of ways, and some unscrupulous service providers are only too happy to help them do so.

2. Undue Influence

As the name implies, undue influence is the allegation that a person improperly influenced the Will’s creator. Undue influence covers many forms of manipulation and pressure, but generally an influencer will manipulate their victim in some way for financial advantage. Unfortunately, those who are sick or elderly may be particularly susceptible to undue influence.

An influencer isn’t always a long-lost nephew or eccentric cult leader. Courts have frequently been willing to find that a Will maker’s own close kin have inappropriately exerted influence. Disputes over undue influence can cause resentment, and quickly deplete Estate assets through legal proceedings.

A solicitor may provide a firewall between the Will maker and a person seeking to influence them, by drilling down into why a person wants to change their Will, or make an unusual bequest. 

3. Disputes Over Division of Assets

This is what most people intuitively understand to be the crux of most Estate issues. Estate challenges can occur when a beneficiary feels as though they have not been provided for adequately from the Estate, or where a specific asset they felt entitled to is not gifted to them under the Will. Such disputes can prove incredibly difficult for both the Executor and the family and can be very costly.

In order for a person to successfully challenge or contest a Will, there are three elements that must be satisfied:

1. The Claimant is an ‘eligible person’ to bring a claim against the Estate;
2. The Will-maker had a ‘moral obligation’ to provide for the Claimant in their Will;
3. The Will-maker failed to meet that moral obligation.

Where the Court is satisfied of the above matters, the distribution of the Estate can be varied.

While the old adage “where there’ a Will, there’s a relative” has an element of truth to it, it is not just any relative who has standing to challenge a Will. A person’s eligibility to make a claim is based on their relationship to the Will-maker. It is a narrow class of persons – spouses and children will have standing to be an eligible person, as will be anyone who had a relationship of financial dependence with the Will-maker.

In determining whether a moral obligation to provide for the Claimant existed, the Court will have regard to an array of factors, including:

• The nature and relationship of the Will-maker and the Claimant;
• The size of the Estate;
• The financial resources and needs of the Claimant, balanced against the financial resources and needs of the other beneficiaries.

Should a challenge make it to Court, it can be an incredibly costly exercise – a cost which is borne by the Estate. In addition to this, it can put huge strain on familial relationships.

There is no bulletproof way to prevent a challenge completely. A properly drafted Will can, however, make the likelihood of a successful challenge so slim that the Claimant would risk not only having their claim rejected, but also having to pay for their own (or potential the other party's) legal costs.

What happens if I die without a Will?

A 2018 survey found that 52% of Australian adults do not have a Will. So what happens when they die? This is called an intestacy. Each jurisdiction in Australia has a legislative regime that sets out how assets are to be distributed in the event of an intestacy – most commonly to spouses and children, then throughout the wider family tree, including parents, siblings, nieces and nephews etc. The key problem with this is the lack of certainty, and the Estate may inadvertently end up in the hands of someone the Will-maker did not intend to benefit from their Estate.

Further, there will be an open question as to who will administer the Estate. Where there is no Will (and therefore, no Executor), the next of kin will have standing to apply to the Court to administer the Estate. Again, this may result in someone being appointed to manage the Estate that the Will-maker wished to avoid.

A death where there has been no explicit consideration as to what is fair in all the circumstances can provide a strong incentive for people to give in to the temptation to behave badly. This can be easily avoided by having a well thought out and robust Will in place.

Partners Legal Solutions offers advice at every stage of the Estate planning process, and can act as your Executor. Our litigation department can help if you need to go to Court for a dispute. Please contact your advisor for further information.

This article is general in nature. It does not take individual circumstances into account, and should not be relied upon as legal advice.