5 Common Will Disputes

Some will disputes are more common than others.

Here are 5 common disputes to a will we see regularly and how such disputes may be resolved.

Will disputes involving executor delaying distribution

It can be frustrating if when you are a beneficiary and the executor delaying distribution does not appear to be concerned about you receiving your assets.

Any person named as an executor of a will has specific responsibilities they need to carry out.

These include carrying out the wishes of the deceased in regards to the distribution of assets under the estate.

In doing so, most executors will need to obtain a Grant of Probate from the court. 

You can speak to our probate lawyers if you wish to apply for probate.

While there is no set time limit in which an executor must take action, the basic rule of thumb is what is known as the ‘executor’s year’.

This suggests that executors should apply for probate within 12 months of the deceased’s death.

If an executor delays the probate process for over a year, expected beneficiaries of the will can apply to the Supreme Court asking the court to set a deadline, by which time the executor must have obtained a Grant of Probate.

If the executor fails to do so, beneficiaries may choose to take further action, and in some cases may attempt to have the executor removed.

Disagreements about Property in the Estates

One of the most common will disputes our lawyers see are disagreements among beneficiaries as to what should happen with estate property.

This usually occurs when family members can’t agree as to whether or not they should sell the family house and divide the profits, or whether the home should stay in the family for future generations.

When making their will, the deceased may stipulate that the beneficiaries have the option to buy the home from the estate if they so choose. However, even without this provision, the beneficiaries may still be able to come to this arrangement.

If one or more beneficiaries decide they would like to buy the property from the estate, it is advisable to get a professional valuation so that all interested parties agree upon an amount.

Executor not following will

In cases where one of the beneficiaries of a will is also named as the executor, other beneficiaries may sometimes argue that the executor was not following the will and has made a suspicious or unauthorised transfer of assets.

This may be to the detriment of the estate.

When there is a suspicion that such transactions have been made forensic accountants are often called in to determine whether property and/or money was improperly removed from the estate.

In such cases, the executor will most likely be removed and/or have their share of the estate downgraded due to their mismanagement.

Accusations of undue influence over the will maker

In some will disputes, a beneficiary may be accused of asserting undue influence over the will-maker to write the will in such a way that goes against the testator’s true wishes.

Undue influence may occur through intimidation, blackmail, flattery or deception and can often be a difficult thing to prove.

You should speak to your wills and estates lawyers about what evidence you should gather to prove undue influence.

If undue influence or coercion is proved to have occurred, an earlier draft of the will may be deemed valid instead, or intestacy rules will determine how an estate is to be divided.

The Will is Not Deemed Legal and Valid

Sometimes, will disputes will involve beneficiaries calling into question the validity of a will.

A will can be deemed invalid for several reasons, including:

• It was not prepared correctly. This often occurs when people draft their own wills or use DIY will kits without obtaining the advice of a professional lawyer.
• There is proof of undue influence from a third party.
• The will-maker is considered not to have had testamentary capacity.

In modern Australian case law, in the case of Banks v Goodfellow, Cockburn CJ set the standard for what constitutes testamentary capacity :

‘a testator shall understand the nature of the act, and its effects; shall understand the extent of the property of which he is disposing; shall view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.’