Published 09 Jan 2018
Author: David Cossalter
Will disputes have a high chance of success in Australia, so it's hardly surprising that many people who are unhappy with the distribution of a loved one's estate decide to contest the will.
In fact, approximately three-quarters of contestations result in a settlement in favour of the plaintiff, according to a 2015 report from the University of Queensland (UQ) and other institutions.
So what situations typically lead to a will dispute? The reasons are wide-ranging and unique to each claim, but here is a round-up of common complaints.
1. The plaintiff was left out of the will
Individuals often feel betrayed when a loved one doesn't include them in their will, particularly if the plaintiff's relationship with the deceased was good. But disputes can arise even when surviving claimants were estranged from the testator.
2. Family feuds
Some people don't contest the will because they are unhappy with their share of the estate, but are instead trying to stop other beneficiaries from receiving a legacy. Feuding families can become especially bitter when there is a history of strained relationships or perceived favouritism.
3. The estate is large
The deceased's wealth can be a key factor in a person's decision to pursue a dispute, so sizeable estates are more prone to contestations. For example, the estates of numerous famous people, including Jimi Hendrix and James Brown, have been subject to lengthy and costly courtroom battles.
4. The deceased left no will
Only 59 per cent of Australians have written a will, the UQ's 'Having the Last Word?' report found. Intestacy rules govern how estates are distributed when someone dies without leaving a will, but this can leave loved ones without adequate provisions from the deceased's estate, forcing them to pursue legal action.
5. The deceased lacked mental faculties
A person writing a will must have the mental capacity to understand what they are doing and have an awareness of the value of their assets to ensure the document is valid. Disputes can therefore arise if the deceased had dementia or other conditions affecting their cognitive skills.
6. Late marriages
When an individual marries later in life, particularly to someone much younger than them, existing family members often suspect the new spouse is financially exploiting their loved one. Existing heirs regularly pursue will disputes in order to prevent a new partner from receiving an inheritance.
Are any of these situations relevant to you? Would you like to discuss contesting a will? Gerard Malouf & Partners Will Dispute Lawyers has decades of experience with inheritance challenges, so please get in touch today.