Disputes about an estate can arise for many different reasons. You may have been left out of a Will or believe you have not been adequately provided for. You may have concerns about whether a Will is valid or about the way an executor is administering an estate.
Disputes can also arise about the meaning of a Will, how estate assets are being dealt with, or who should receive a superannuation death benefit.
If you are an executor, you may find yourself responding to a claim or dealing with disagreements between beneficiaries or other people interested in the estate.
Getting advice early can help you understand your position, any time limits that may apply and the options available to resolve the dispute. Not every estate dispute needs to be decided by a Court. Where appropriate, issues may be able to be resolved through negotiation or mediation.
What can an estate dispute involve?
1.
Contesting a Will
If you have been left out of a Will, or believe that the provision made for you is inadequate, you may be entitled to make a family provision claim seeking further provision from the deceased estate.
Whether you are eligible to make a claim, and whether a claim is likely to succeed, will depend on your relationship with the deceased and your particular circumstances. Strict time limits apply, so it is important to seek advice early about your rights and options.
2.
Challenging the validity of a Will
Sometimes there may be concerns about whether a Will truly reflects the deceased person’s wishes or whether it is legally valid.
Questions may arise about whether the Will-maker had the necessary capacity to make the Will, whether they were subject to undue influence, whether there are suspicious circumstances surrounding the making of the Will, or whether the Will was properly signed and witnessed.
3.
Interpreting a Will
The wording of a Will is not always clear, and questions can arise about what the Will-maker intended or how a particular provision should be applied.
Disputes may arise where a clause is ambiguous, beneficiaries have different interpretations of the Will, or there is uncertainty about who should receive an asset or how it should be distributed.
4.
Executor and estate administration disputes
Executors have important responsibilities when administering an estate, and concerns can arise about whether those responsibilities are being properly carried out.
Disputes may involve delays in the administration, a lack of information or communication, the way estate assets are being managed or dealt with, concerns about distributions to beneficiaries, or whether an executor is acting in accordance with the Will and their legal obligations.
5.
Superannuation death benefit disputes
A deceased person’s superannuation does not necessarily form part of their estate, and questions can arise about who is entitled to receive the death benefit.
Disputes may arise where there are competing claims from family members or dependants, uncertainty about the effect of a death benefit nomination, or concerns about a decision made or proposed by the superannuation fund trustee.
6.
Executor and Trustee conflicts
Executors and trustees have duties to act properly in administering an estate or trust, but concerns can arise where their personal interests conflict with their responsibilities or where competing duties make it difficult for them to act impartially.
A conflict may arise where an executor or trustee is also a beneficiary, has a personal interest in an estate asset or transaction, or is involved in a dispute with other beneficiaries or interested parties. Being both an executor or trustee and a beneficiary does not, of itself, mean that there is a problem, but particular care may be required where interests compete.
7.
Informal or multiple Wills
Questions can arise where a deceased person left a document recording their wishes that was not prepared or signed as a formal Will, or where more than one Will, draft Will or other testamentary document is discovered.
In some circumstances, an informal document may still be recognised as a Will. Where there are multiple documents, it may be necessary to determine which represents the deceased person’s final intentions and whether an earlier Will was revoked or altered by a later document.
8.
Shared property disagreements
Disputes can arise where the deceased person owned property or other assets jointly with another person, particularly where there is uncertainty about the nature of the ownership or what should happen to the deceased person’s interest.
Questions about Estate Disputes
Can I contest a Will if I have been left out or not adequately provided for?
In Queensland, certain people may be eligible to make a family provision application if they have been left out of a Will or believe that the provision made for them is inadequate.
Whether you are eligible to make a claim, and whether further provision should be made for you, will depend on your relationship with the deceased and the circumstances of the estate.
Strict time limits apply to family provision applications, so it is important to obtain advice promptly if you are considering making a claim.
What is the difference between contesting a Will and challenging a Will?
Contesting a Will generally refers to seeking further provision from an estate. You are not necessarily saying that the Will itself is invalid; rather, you are saying that adequate provision has not been made for you.
Challenging a Will involves questioning whether the Will itself is valid. This may involve issues such as whether the Will-maker had capacity, whether there was undue influence, or whether the Will was properly made or executed.
The distinction matters because the legal issues, evidence and time limits can be different depending on the type of claim.
How long do I have to contest a Will?
Strict time limits apply to family provision applications in Queensland.
A person intending to make a claim generally needs to give the executor written notice of their intention to make a claim within six months of the date of death and commence their application within nine months of the date of death. These periods run from the date of death, rather than from the date Probate is granted or the date you become aware of the Will. The Court may allow a late application in some circumstances, but this is not automatic. If you believe you may have a claim, it is important to obtain advice promptly.
What can I do if I think a Will is not valid?
There are a number of reasons why questions may arise about whether a Will is valid. These can include concerns about whether the Will-maker had the capacity to make the Will, whether they were subject to undue influence, whether the Will was properly signed and witnessed, or the circumstances in which the Will was prepared.
If you have concerns about a Will, it is important to obtain advice before the estate is distributed. The circumstances surrounding the preparation and signing of the Will may need to be investigated and relevant evidence obtained.
If the validity of the Will cannot be resolved between the people involved, an application to the Court may be required to determine which Will, if any, should be admitted to probate.
What can I do if I am concerned about an executor?
An executor is responsible for administering the estate in accordance with the Will and their legal obligations. Concerns can arise if there are significant delays, estate assets are not being properly managed, beneficiaries are not being kept appropriately informed, or there are questions about how the executor is carrying out their responsibilities.
If you are concerned about the administration of an estate, the appropriate next step will depend on the nature of the concern. It may be possible to obtain information from the executor, resolve the issue through correspondence or negotiation, or take other steps to progress the administration.
In more serious cases, Court intervention may be required. This can include seeking orders about the administration of the estate or, in appropriate circumstances, seeking the removal or replacement of an executor.
What happens if beneficiaries disagree about an estate?
Disagreements between beneficiaries can arise about a range of issues, including how the Will should be interpreted, how particular assets should be dealt with, or how the estate is being administered.
The appropriate way to deal with the disagreement will depend on the issue involved. In some cases, further information or legal advice may help clarify the position. In others, negotiation or mediation may provide a way to resolve the dispute without the need for a Court to determine the matter.
If an agreement cannot be reached, Court proceedings may sometimes be necessary. An executor also needs to be careful not to distribute the estate while there is an unresolved dispute that may affect how the estate should be dealt with.
Can I challenge who receives a superannuation death benefit?
Yes, in some circumstances. Superannuation does not necessarily form part of a deceased person’s estate, and the trustee of the superannuation fund may be responsible for deciding who receives the death benefit where there is no valid Binding Death Benefit Nomination.
If you disagree with a decision made or proposed by the trustee, there may be an opportunity to object or seek a review of that decision. The process and time limits will depend on the superannuation fund and the stage the decision has reached.
Superannuation death benefit disputes can involve competing claims from family members, dependants or the deceased person’s estate. If you have concerns about how a death benefit is proposed to be paid, it is important to obtain advice promptly and before any applicable time limit expires.
Does an estate dispute have to go to Court?
Not necessarily. Many estate disputes can be resolved without the Court having to make a final decision.
Depending on the issues involved, it may be possible to resolve a dispute through negotiation or mediation. Reaching an agreement can give the people involved greater control over the outcome and may reduce the time, cost and uncertainty involved in Court proceedings.
Some disputes, however, require the Court to determine a legal issue or cannot be resolved by agreement. If Court proceedings are necessary, we can help you understand the process, the options available to you and the steps required to progress or respond to the claim.
How we can help
Estate disputes can involve difficult questions about a Will, an executor, the administration of an estate or who should receive particular assets or benefits.
We can help you understand your legal position, the options available to you and any time limits that may apply. Where appropriate, we can assist with resolving a dispute through negotiation or mediation, and represent you in Court proceedings where a dispute cannot otherwise be resolved.
We also assist executors who are responding to claims or dealing with disputes that arise during the administration of an estate.