Monday to Friday:- 8:45am – 5:15pm (Melbourne Office)

Estate Litigation

After a person passes away – whether or not the person leaves a valid Will – there may be someone who was excluded from the Will or a named person who did not receive a fair distribution of the estate, to challenge the estate. If you have been left out of will unfairly, we can help advise if your circumstances have the basis to challenge the will.

Alternatively, if you have an estate that has a claim made against it you should have proper legal representation to properly defend the estate.

We understand the nuances involved in handling estate disputes and litigation and the strong emotional impact it has on the surviving family members and beneficiaries. Feeling disinherited or unfairly treated or having claims made in an estate division can lead to more conflict in the family and beneficiaries. It is best to have the most professional legal advice from lawyers who understand Estate Litigation and are able to negotiate the best outcome and minimise emotional impact that estate disputes have on those involved.

Types of Will or Estate Disputes

We handle a variety of disputes involving wills and probate and intestacy.

  • Validity of a Will
  • Challenge a Will or Testators Family Maintenance Claim
  • Dispute with Executor or Breach of Trust Claim
  • Superannuation or Insurance Claims
  • Challenging Probate
  • Defending Estates & Executors
  • Beneficiaries disputes about the division of assets

We represent clients in this area as follows

  • Those needing to bring a claim against the Estate; and
  • Executors acting on behalf of the Estate, where a claim has been brought by a party making a claim against the Estate.

Who can challenge a will?

There are certain categories of people who may challenge a Will such as:
  • Husband or wife
  • A de-facto or same sex partner
  • A child
  • A former husband or wife
  • Grandchildren
  • Someone who has ever been dependent on the deceased

The types of claims that can be made against an Estate are:

TFM – Testators Family Maintenance Claim

In Victoria, the process of disputing or challenging a will is typically known as a Testators Family Maintenance claim (TFM claim) – or, more simply, an estate claim.

This is the most common Will dispute and is typically brought by family members or dependents who haven’t received a fair share of the estate or have been left out of the Will entirely.

These claims centre around the Administration of Probate Act that states that proper maintenance and support should be provided to those people for whom the deceased person owes a moral responsibility.

There are many factors that a court will consider in deciding whether an estate claim is successful. A court will consider firstly if the moral responsibility exists. They will also consider if they have already been adequately provided for in the estate, and the capacity of the person to provide for themselves. There is also consideration for how the other beneficiaries will be impacted by the claim.

The way a court views the claim on the estate and all the surrounding factors involved, is important to have correctly presented in order for a successful claim. Having professional estate lawyers preparing and acting on your behalf will ensure that your case is presented in the best possible light. We understand the court requirements and are experienced in handling these negotiations.

Capacity Claim

For a Will to be valid the will maker must, at the time of making the Will have “Testamentary Capacity”. Testamentary Capacity is the legal term describing the soundness of mind that is required by the will maker. A person making a will must be of sound mind, memory and understanding to make a will according to the case of Banks v Goodfellow, of which much of this area of law is based on.

To have the requisite soundness of mind the person must:

  1. understand the nature and effect of a will
  2. understand the nature and extent of their property
  3. comprehend and appreciate the claims to which they ought to give effect
  4. be suffering from no disorder of the mind or insane delusion that would result in an unwanted disposition.

Claims that arise due to capacity are more complicated and required proof of the lack of testamentary capacity. This typically is established by medical practitioners and psychologists to prove that someone lacked capacity.

If a claim was successful, the Will would be invalid and the proceeds from the estate would be divided according to the Administration and Probate Act 1958 (Vic).

Undue Influence Claim

In instances where someone may have used undue influence to coerce the testator into making amendments to their will to benefit themselves. This is applicable to family and “strangers”. Only actual coercion will invalidate a will.

Such cases are difficult to prove as it needs evidence typically that the person making the will (testator) would be able to provide.

Coercion can be violence and deprivation of liberty or other behaviour that manipulates the testator to amend their will from what they would have done so if they were free and independent.

Undue influence is cited differently from coercion and is described as below in Nicholson v Knaggs by Vickery J as:

The key concept is that of ‘influence’. The influence moves from being benign and becomes undue at the point where it can no longer be said that in making the testamentary instrument the exercise represents the free, independence and voluntary will of the testator. It is the effect rather than the means which is the focus of the principle.

To support an undue influence claim there needs to be strong evidence such as a beneficiary being instrumental in preparing the will; whether there is physical and mental impairment with the testator; significant change from a prior will. You may also have to show that the new will doesn’t make testamentary sense.

These cases arise from situations of elder abuse and success in such claims can be difficult, but not impossible and out of court settlements do occur in such cases. Careful consideration of such cases is needed to be successful and assessment of the claim by an estate & probate lawyer that is experienced in litigation in will disputes.

Breach of Trust

Executors have responsibilities to act in the best interests of the beneficiaries of an estate. They have the responsibility to administer the estate and realise the assets in order for them to be distributed to the beneficiaries and make sure all the taxes, bills and costs are paid.

There are general guidelines as to how long it takes to finalise the estate and probate and if there are issues with how the process is going. Consulting and engaging a lawyer may help to move the process along.

An executor has control of the financial decisions in finalising the estate and there can be instances of assets not being dealt with correctly or a dispute as to how the assets are divided.

If you have an executor with a conflict of interest or they are not behaving in the best interests of the beneficiaries, they can be removed. The process for removal is an application to court to seek orders for an administrator to be appointed. Other court orders can be obtained dealing with the sale or distribution of assets and production of financial records etc to resolve the dispute between the beneficiaries and the executor.

There can be a resolution before going to court and obtaining orders. Seeking the correct legal advice is crucial to negotiating and procuring a successful outcome.

Superannuation & Insurance Claims

Where a person is not able to claim against the Will they may be able to make a claim against the deceased person’s superannuation fund or an insurance policy.

We can assist clients with assessing the different thresholds required to obtain different assets of the deceased estate.

Providing clients with the best possible service and advice.

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