Will disputes often arise when someone has passed away, and the, as the deceased’s estate needs tomust 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 arisecome up.
Some common will disputes can easily be prevented with careful drafting of a will, or assistance from wills and estate lawyers. Read on to learn more about the 5 most common will disputes we come across.
- Executors delay
- Disagreements on the disposition of the estate propertly
- Beneficiaries allege unauthorised transfer of assets
- Accusations of undue influence
- Heirs point out problems with the will
5 common will disputes
1. 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 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 can apply to the Supreme Court and seek a deadline for the executor to obtain a grant of probate.
2. 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 kept in the family. Typically, the best way to resolve this problem is for the beneficiaries looking to keep the house, to buy out the interest of people wanting to sell . The deceased person 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 buy the home, the parties should consider seeking an expert to conduct a valuation of the property to determine an appropriate amount to pay.
However, serious disagreements can arise if one or more beneficiaries believe that the will does not appropriately take into account their legitimate needs. Certain classes of people with a relationship to the deceased may have rights to challenge the will and have it re-drawn by the Court, if the will has failed to adequately allow for those needs.
Rights may also exist for persons who reasonably anticipated bequests under the will. When such representations were relied upon, then a Court may find it is necessary for the testator to provide gifts to meet those expectations.
3. 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 deceased’s assets, other beneficiaries may argue that there have been suspicious unauthorised asset transfers by the person in charge of managing the 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 unfair reduction of the value of the estate. When there is a suspicion of unauthorised transfers, forensic accountants can review records to determine if property or money was improperly removed from the estate. If so, the assets can be taken back. An executor who removed funds could also be removed as executor, with the understanding that he or she will receive a lesser share of the estate.
4. Accusations of undue influence are made
If a family member or friend unduly influenced the deceased regarding estate planning, a will that was created under duress or as a result of undue influence is challengeable and may be declared invalid. Close family and friends can challenge contest a will, however, they will need to prove a problem occurred in its creation. If undue influence or proof of duress makes the will invalid, earlier versions of the will may apply or intestacy rules will dictate how an estate is to be divided.
5. Heirs point out problems with the will
Many people either try to create a will themselves or use will kits. These wills are often more susceptible to being challenged, as they may not be clear about a deceased’s wishes, or because they don’t follow the legal requirements of a will. This can be avoided by consulting with a wills dispute lawyer when thea will is being created. If no lawyer was consulted and the deceased has passed away, the court can make a decision on whether the will should be probated and what this means for beneficiaries.
Trust the wills & estate lawyers at Owen Hodge
Avoiding problems by creating a valid and comprehensive will prior to death is one of the greatest gifts you can give to your loved ones. Talking with a wills & estate lawyer about how to protect your assets can allow your family and friends to focus on dealing with their grief, rather than legal fights when you pass away. At Owen Hodge Lawyers, we strive to provide the best legal advice and guidance when it comes to wills and estates. Please contact our will dispute lawyers in Sydney on 1800 770 780 to schedule a consultation today.
Will disputes FAQs
Is it worth contesting a will?
If you believe you are entitled to more than you’re receiving, then yes, it’s definitely worthwhile contesting a will. This can be a lengthy process; however, the outcome can be beneficial in the long-term. Contact a will disputes lawyers for advice as to the best route forward.