Estate Litigation

There comes a time for many of us when we have to deal with the passing of a loved one. It’s a difficult period, full of grief and complicated emotions. On top of that, you might find yourself navigating the complexities of their estate and, in some cases, the legal minefield of their will. While most wills are straightforward, sometimes you might look at the contents and think, “Hang on, that’s not right.” Maybe you’ve been left out entirely, or you feel the distribution is just plain unfair. This is where the legal concept of contesting a will comes into play.

Australian law, like in many other places, is designed to be a one-size-fits-all solution. It provides a solid framework for how a will should be set up, who it can provide for, and the formalities that must be met for it to be legally valid. The problem is, this standardisation doesn’t take into account the unique, personal circumstances of every family. Life is messy, and relationships are complex. A will that looks perfectly fine on paper might not actually provide adequately for the people who truly depended on the deceased. If you’re in this boat, you might have legitimate grounds to challenge the will.

What Makes a Will “Unfair”?

It’s a common misconception that a person can leave their estate to whomever they like, with no strings attached. While a will-maker has a lot of freedom, they also have a moral and legal duty to provide for certain people. If you’re a close family member or a dependent who hasn’t been adequately provided for, you might have a claim for what’s known as a Family Provision claim. This isn’t about the will being invalid; it’s about the will-maker not fulfilling their legal and moral obligations to you.

For example, maybe you’re an adult child who lived at home and cared for a parent for years, but the will leaves the entire house to a sibling who lives interstate and rarely visited. Or perhaps you were the de facto partner of the deceased for decades, but the will was never updated and leaves everything to their estranged brother. In these situations, the will isn’t necessarily invalid, but it’s arguable that it doesn’t make proper provision for you as a dependent or a close family member.

When you’re considering a claim, a good solicitor will use their extensive knowledge of estate legislation to advise you. They’ll look at your relationship with the deceased, your financial needs, the size of the estate, and the circumstances of the other beneficiaries. They can tell you whether you have a genuine chance of success, which is a massive help before you decide to go through with litigation.

Challenging a Will’s Validity

Sometimes, the issue isn’t that the will is unfair, but that it’s simply invalid. One of the most common reasons a will is deemed invalid is because the person who made it didn’t have the required mental capacity. This is often referred to as testamentary capacity.

For a will to be valid, the person making it must have been of full mental capacity at the time it was signed. This means they must have understood:

• What a will is and its effect: They needed to know they were making a document that would dispose of their property after they died.

• The nature and extent of their property: They should have a general idea of the assets they owned, even if they didn’t know the exact value of every single thing.

• The people who have a claim on their estate: They should be aware of the people who might reasonably expect to be included in the will, such as their children, spouse, or other dependents.

• The claims they were giving effect to: They must have been able to weigh up the claims of those people and make a conscious decision about how to distribute their estate.

This can be a tricky area, and it’s not as simple as someone being elderly or having a diagnosed medical condition like dementia. The test is whether they had the required capacity at the specific moment they made or updated their will. For instance, a person with dementia might have had a “lucid interval” where they were fully aware and capable of making a will. Conversely, someone who seems fine might have been under the undue influence of another person, which can also invalidate a will.

If you believe the deceased lacked the mental capacity to make their will, you have grounds to challenge its validity. This is a big deal, as if you’re successful, the entire will can be thrown out. In that case, either a previous will (if one exists) would be put into effect, or the deceased’s estate would be distributed according to the laws of intestacy—that is, as if they died without a will at all.

What to Do Next

If you’re feeling overwhelmed and think you might have a claim, the best thing you can do is seek advice from a specialist in this area. A good solicitor can review the facts of your situation, the will itself, and all the surrounding circumstances. They can provide a clear-headed assessment of whether you have a legitimate case. They’ll also be upfront with you about the potential costs involved and your options for resolving the dispute.

It’s worth remembering that these kinds of disputes can be emotionally draining. Having an experienced and empathetic legal team by your side can make all the difference. They can help you navigate the process, from initial advice through to negotiation and, if necessary, litigation. The goal is always to get a fair and just outcome for you, whether that’s through a negotiated settlement or a court order.

Dealing with a will dispute is never a pleasant experience, but sometimes it’s a necessary step to ensure that a loved one’s final wishes are carried out fairly, or that you receive the provision you’re entitled to. Don’t feel like you have to go through it alone. Getting some expert advice is the first and most crucial step towards a resolution.