Will disputes often arise when someone has passed away, as the deceased’s estate must be divided. When the deceased has a valid will in place, these disagreements should be kept to a minimum. Sometimes, however, even when careful instructions were left behind, problems can still come up.

 

The five common will disputes, for example, arise often but can be prevented by the deceased with careful drafting of a will or can be resolved quickly with cooperation from beneficiaries and help from lawyers and other professionals:

 

Executors delay, to the dissatisfaction of heirs.

 

Executors are responsible for carrying out the wishes of the deceased and managing the probate process. As the first step in this process, executors must obtain a grant of Probate.  There’s no legal time limit in which the executor must take action; however, a basic rule of thumb dubbed “the executor’s year,” suggests that an executor should act within 12 months of the death.  If an executor delays for over a year, those who expect to be named as beneficiaries in the will can apply to the Supreme Court seeking a deadline by which the executor would be compelled to obtain a grant of probate.

 

Beneficiaries disagree on the disposition of the estate property.

 

A big point of contention for many families is whether the family home should be sold or whether it should be kept in the family.  Typically, the best way for this problem to be resolved is for the beneficiaries who want to keep the house to buy out the interest of those who want to sell. The deceased may explicitly spell out that beneficiaries have an option to buy the home from the estate, but even if the will doesn’t include this provision, an agreement can still be reached and set out in a deed.  When one or more beneficiaries will buy the home, the parties should consider seeking out an expert to conduct a valuation of the property to determine an appropriate amount to pay.

 

However serious disagreements can arise between beneficiaries if one or more beneficiaries are of the view that the will does not appropriately take into account their legitimate needs. Certain classes of people with relationship to the deceased may have rights to challenge the will and have it re-drawn by the Court if they have needs recognised by the Court and the deceased in drafting the Will has failed to adequately allow for those needs.

 

Rights may also exist for persons who reasonably anticipated bequests under the will due to representations made by the testator during his or her lifetime. When such representations were relied upon and such reliance was known to the testator then a Court may find that it was incumbent upon the testator to provide gifts in the will meeting those expectations.

 

Beneficiaries allege unauthorized transfers of assets.

 

When one child or close family member is given power of attorney, named as executor and/or otherwise put in charge of the assets of the deceased, other beneficiaries may argue that there have been suspicious unauthorized asset transfers by the person in charge of managing money.  If the person with power of attorney moved funds out of bank accounts, for example, the other beneficiaries may argue that the transfer of assets was an unauthorized and unfair reduction of the value of the estate.  When there is a suspicion of unauthorized transfers, forensic accountants can review records to determine if property or money was improperly removed from the estate. If so, the assets can be clawed back. An executor who removed funds could also be removed as executor, or allowed to probate the will with the understanding that he or she will receive a lesser share of the estate.

 

Accusations of undue influence are made.

 

 If a family member or friend unduly influenced the deceased regarding estate planning, a will created under duress or as a result of undue influence is challengeable and may be declared invalid.  Close family and friends can challenge a will, but will need to prove a problem occurred in its creation. If undue influence or proof of duress makes the will invalid, earlier versions of a will may apply or intestacy rules will dictate how an estate is to be divided.

 

Heirs, or potential heirs, point out problems with the will.

 

Many people try to create a will themselves or use will kits or informal wills. These wills may be more susceptible to being challenged because they may not be clear about a deceased’s wishes or because they may not follow all requirements associated with the creation of a valid will. This can be avoided by consulting with a lawyer when a will is being created. If no lawyer was consulted and the deceased has passed away, the court can make a decision on whether a will should be probated and on what the will means for beneficiaries.

 

Avoiding problems by creating a valid, comprehensive will prior to death is one of the greatest gifts you can give to your loved ones. Talking with a lawyer about how to protect your assets and ensure your wishes are respected can allow your family and friends to focus on dealing with grief rather than legal fights when you pass away. 

 

A lawyer can also provide help with resolving disagreements that arise after a death. Call us at 1800 770 780 or contact us via ohl@owenhodge.com.au to get legal advice when drafting and signing your will.