Disagreements over a Will or the administration of an estate are complex. They often involve painful memories, difficult relationships within families and turn times of grief into a period of stress, uncertainty, and conflict.
At Segelov Taylor Lawyers, we have extensive experience in this complex and sensitive area of law. We understand that behind every estate dispute are real people with personal histories and deeply felt concerns. Our approach is to combine robust legal representation with genuine compassion, aiming to resolve conflicts fairly, pragmatically and cost-effectively, whether through strategic negotiation, mediation, or, when necessary, decisive and vigorous court action.
Contesting a Will: Family Provision / Testator's Family Maintenance Claims
Who is Eligible to Make a Claim?
- A spouse or de facto partner of the deceased.
- A child of the deceased.
- A former spouse of the deceased.
- A grandchild who was at least partly dependent on the deceased.
- A member of the deceased’s household who was at least partly dependent on them.
- A person who was living in a close personal relationship with the deceased at the time of their death.
Find out the more about claims in your state
Information about who is an eligible person, applicable time limits, and other relevant matters on a state-by-state basis.
What Does the Court Consider?
- Their financial position, including their current and future needs.
- Their position of other beneficiaries, including their current and future needs.
- The nature and length of their relationship with the deceased.
- The size and nature of the deceased’s estate.
- Any contributions made to the deceased’s property or welfare.
A Step-by-Step guide to a typical FPA Claim
See a step-by-step guide for claimants and for executors of a typical FPA Claim
Challenging the Validity of a Will
Lack of Testamentary Capacity
- Understood the nature and effect of making a Will.
- Understood the extent of the property they were giving away.
- Was able to comprehend and appreciate the claims to which they ought to give effect.
- Was not suffering from any disorder of the mind that would poison their affections or prevent them from making rational decisions.
Undue Influence and Suspicious Circumstances
- Undue Influence: This is where it is alleged that the testator was coerced or pressured into making a Will that they did not truly want to make. This is more than simple persuasion; it involves the testator’s will being completely overborne by another person.
- Suspicious Circumstances: This often goes hand-in-hand with undue influence. If a person who benefits significantly under a Will was also instrumental in preparing or arranging for the Will to be signed, the Court will be highly suspicious. In such cases, the person benefiting may have to prove that the Will was the result of the testator’s own free act.
Disputes Involving Executors
- Failure to Administer the Estate: Beneficiaries can take action if an executor is causing unreasonable delays, failing to communicate, not providing an account of the estate’s finances, or refusing to distribute assets.
- Executor Misconduct: We can assist where an executor is acting improperly, for example by mixing estate assets with their own, selling property for less than its market value, or otherwise acting in their own self-interest.
- Removal of an Executor: In serious cases of misconduct or inaction, we can make an application to the Supreme Court to have an executor removed and replaced with an independent administrator.
Resolving Disputes Through Deeds of Family Arrangement
Court is not the only option. A Deed of Family Arrangement is a legally binding agreement that allows the beneficiaries to mutually agree to alter the terms of the Will. It is a powerful tool to settle a dispute without the expense, delay, and emotional damage of a court battle.
This approach is much cheaper, and provides certainty, confidentiality, and allows the family to control the outcome.
Other Common Estate Disputes
- Promissory Estoppel Claims: Where the deceased made a promise to leave someone property, that person relied on the promise to their detriment (e.g., by working for low wages), and the promise was not fulfilled in the Will. These disputes often arise in the relation to family farms.
- Superannuation Death Benefit Challenges: Superannuation does not automatically form part of an estate. Disputes often arise over who the superannuation fund trustee should pay the death benefit to. We can assist in challenging these decisions through internal reviews and the Australian Financial Complaints Authority (AFCA).
- Informal Wills: Seeking a court declaration that an informal document, such as a note, a text message, or even a video, should be recognised as the deceased’s final, valid Will.
Our Approach: Strategy, Clarity, and Resolution
- Listen: We provide a confidential consultation to understand your unique situation and objectives.
- Advise: We give you clear, straightforward advice on your legal rights, your options, and your prospects of success.
- Strategise: We develop a clear strategy tailored to your case, focusing on the most efficient path to a successful resolution.
Common Questions
A person making a will must have testamentary capacity. This means they must be of sound mind, memory and have understanding at the time of making the will. A person is regarded as having the required capacity if they:
- Know what a will is;
- Realise in general terms the amount and type of property they are disposing of;
- Can weigh the “moral claims” that they should be considering when deciding who to leave property to; and
- Know and approve of the contents of the Will.
Any person who has interest in the will (or a previous will) of the deceased may challenge a will. This is a far broader test than for contesting a will.
A will can also be challenged if the will maker was subjected to undue influence or duress in the making of the will. A court will however only overturn a will on the grounds of undue influence where it is satisfied the will maker’s mind was coerced to such an extent that the resulting will was contrary to the will maker’s real intentions. This can be extremely difficult to prove.
There are not strict time limits, although proceedings should be commenced as soon as practicable.
An alternative to challenging a will is to contest a will.
The difference between challenging a will and contesting a will is that a challenge to a will alleges that the will is not valid, while a contest to a will alleges that the will improperly excludes (in whole or part) a person who should have been provided for.
Segelov Taylor are able to assist in contesting and challenging wills.
Segelov Taylor acts on a ‘no win no fee’ basis for individuals in family provision claims. This means if you are not successful you will not be charged for our costs incurred in litigating the claim. However, if you are not successful in your claim you may be order to pay the executor’s costs. It is therefore important you seek legal advice as to the merits of any claim before commencing proceedings.
If you are the executor of a Will where a family provision claim has been made you are entitled to have the cost of defending the claim paid by the estate.
Contesting a will and challenging a will have very different meanings.
A will is contested when someone believes that they have not received adequate provisions or fair treatment from the deceased’s estate. This does not mean they believe the will was not valid. The process is often referred to as a family provisions claim.
A will is challenged where there is a dispute as to the validity of the entire will itself. To challenge a will is to claim that the will is an unjust representation of the deceased’s interests or has been created in an illegitimate way. A challenge is an appeal for the entire will to be struck out. When this occurs, a prior valid will have effect, or there may be no valid will and the rules of intestacy will apply.
A family provision claim must be filed within 12 months of the date of death. The court has a discretion to extend the time for the commencement of a claim if there is good reason for the delay.
The fact that you received something under a will does not prevent you from bringing a claim contesting a will.
Rather, the crucial issues are whether you (a) are an eligible person (generally a spouse, child, or dependent), and (b) whether you received adequate provision under the will, taking into account all the relevant considerations.
A claim is made by filing an application in Court along with a detailed Affidavit setting out the circumstances of the case. This must be done within 12 months of the date of death. The estate will respond and file its own evidence.
The matter will then be listed for compulsory mediation. This is generally within 4-6 months of the claim being filed. Most matters settle at mediation.
If a matter doesn’t settle at mediation, it will proceed to hearing. This will normally occurs within 12 and 18 months of the commencement of proceedings.
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Wills and estates disputes
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