Things can get ugly. Even normally rational people may do strange and unaccountable things when stressed by the death of a parent.  Whether you anticipate that a sibling (either one of your own or one of your parents) may dispute a Will or whether you already find yourself in this difficult situation, it can be helpful to understand what the dispute is about, how likely it is to succeed, and what options exist for resolving the problem. 

Understanding the dispute

Technically, there are two different kinds of disputes. The first (called a “challenge”) disputes the validity of the entire Will. These types of cases usually arise when the person who made the Will was suffering from a mentally debilitating disease, they were pressured to change their Will by a caregiver, the Will is a forgery or was improperly signed or witnessed, or the deceased was fooled into signing something that they did not realise was a Will.

A successful challenge will end with the entire Will being invalidated and the estate to be distributed under the terms of a previously valid Will or under the rules of intestacy.

More common are Will contests, where someone, perhaps an adult child, believes that he or she should have been in the will, or perhaps provided for more generously under the Will.

In the event of either kind of dispute keep in mind that courts give great deference to the expressed intentions of a deceased person. Close questions tend to be resolved in favour of the terms of the Will.

Elements of a Will contest in NSW

A Will contest requires two things. First, the person contesting the Will must fall within a category of “eligible persons.” In addition, an eligible person must show that the deceased had a moral obligation to provide for him or her, considering the size of the estate and claims of other beneficiaries.

Who is an eligible person?

The Succession Act 2006 defines a category of “eligible persons” who may contest the provisions of a Will. This category generally includes, among others:

  • A child of the deceased;
  • Someone who was, at any particular time, wholly or partly dependent upon the deceased person; and  a grandchild of the deceased person or a member of the household; or
  • A person with who the deceased was living in a close personal relationship at the time of death.

That casts a wide net, which would include children, stepchildren, perhaps siblings of the deceased or voluntary live-in carers. 

A moral obligation to provide

Then, however, the eligible person must also demonstrate that the deceased had a moral obligation to provide for him or her, considering the size of the estate and claims of other beneficiaries. This often referred to as a Family Provision claim.

Courts look at:

  • a claimant’s financial position;
  • the size and nature of the deceased’s estate;
  • the totality of the relationship between the claimant and the deceased, and;
  • the relationship between the deceased and other persons who have legitimate claims on the estate.

For example, an estranged son or a wealthy daughter might have a lesser claim than a financially dependent grandchild who lived with the deceased or a dutiful, unpaid, live-in friend who provided care and comfort during the deceased’s last years. 

What to do

If you are creating an estate plan that you believe may create a dispute, there are any number of strategies you can pursue in advance that may reduce tension. These include making lifetime gifts, funding a benefit through life insurance, establishing a Trust within the Will and appointing an impartial trustee to oversee the distribution of assets. Explain your choices to those who might otherwise be surprised.

If you are acting as the executor or are the beneficiary of a Will that is currently being disputed by a child or sibling of the deceased you should certainly seek legal representation. This is not a do-it-yourself project. Professional representation may do a great deal to avoid conflict.

Have the issues of money and inheritance reared their ugly heads? The attorneys at Owen Hodge Lawyers are ready to discuss the risk of a Will contest, what may potentially happen and how to avoid lasting damage to relationships and finances. Please call us at 1800 770 780 to schedule a consultation.