If someone is unhappy with the terms of the will, or when there is a question about whether it is a valid will or if there was undue influence or other factors, an estate dispute can arise. For instance, the validity can be contested if someone believes the testator (the person who made the will) did not have the testamentary capacity to make a will when they signed it.
The Different Types of Estate Disputes
Many different types of estate disputes occur between family members or other beneficiaries. Some of the most common reasons to dispute a will include:
Contesting the validity of a will:
This is the most common type of estate dispute in NSW. If someone believes the will is invalid, they can challenge it in court. There are several grounds on which a will can be challenged, such as:
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- The will was not made voluntarily.
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- The testator (the person who made the will) did not have the mental capacity to make a will when they signed it.
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- The will was forged or altered.
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- The will was made under duress or undue influence.
Challenging the interpretation of a will:
An estate dispute can arise if there is a disagreement about the testator’s wishes or the will’s meaning needs to be clarified. If there is a disagreement under these circumstances, the court may have to interpret the will. This can be a complex and difficult process.
Claiming a share of the estate under the Family Provision Act:
This Act allows an ‘eligible person’, such as a spouse, children, and dependents, to claim a share of the estate even if they are not mentioned in the will.
Alleging that the executor of the estate has acted improperly:
The executor is the person who is responsible for managing the estate and distributing the assets to the beneficiaries. If someone believes that the executor has misbehaved, has mismanaged the estate, or failed to carry out their duties properly, the will may be contested.
Launching an Estate Dispute in NSW
Resolving estate disputes can be complex and time-consuming and must be heard by the NSW Supreme Court. If you or other beneficiaries are considering estate litigation, seeking legal representation from experienced lawyers such as those at the Wills & Estate Disputes Helpline is essential.
The following reasons are the most common cause of estate litigation or dispute:
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- The deceased may have made a mistake in their will, such as omitting a family member or other expectant beneficiaries and leaving someone out entirely, leading to a dispute.
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- A dispute may arise if the will-maker was under undue influence or pressure from someone to make a will in their favour.
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- The will may have been forged or altered after the deceased’s death, leaving out family members.
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- The family members and other will beneficiaries may not agree on how the assets from the deceased estate should be distributed.
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- The executor of the deceased person’s estate may have mismanaged the assets, including the sale of the family home, or failed to follow the instructions in the will.
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- An earlier version of the will may show someone was included but left out of the current will.
If you are a family member or interested party involved in estate litigation or dispute over an invalid or valid will, estate administration, an undue influence claim or any other issue, seek legal advice as soon as possible. A lawyer can help you understand the Grant of Probate process, your rights and options concerning the deceased’s estate, and can represent you in the Supreme Court if necessary should a dispute arise.
The Process of a Grant of Probate
A Grant of Probate is a court order that gives the executor of a will the authority to manage the deceased person’s estate and distribute the deceased’s assets according to the terms of the will. In NSW, the Grant of Probate is issued by the Supreme Court.
The benefits of a Grant of Probate include:
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- It gives the executor the authority to manage the estate and distribute the assets.
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- The executor can access the estate’s assets, such as bank accounts and property.
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- It protects the executor from personal liability for the debts of the estate.
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- It provides a public record of the executor’s authority.
To apply, the executor must file an application with the Court and provide several documents, including:
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- The will of the deceased person
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- A death certificate
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- An inventory of the assets of the estate
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- A statement of the debts of the estate
The Court will then review the application and issue Probate if it is satisfied that the will is valid and that the executor is qualified to act.
The Probate document is usually required by banks, financial institutions, and other organisations before they will release the deceased’s assets to the executor.
If there is no will, or if the executor named in the will is unable or unwilling to act, then a grant of letters of administration may be issued. Letters of administration are similar to a Probate, but they give the administrator the authority to manage the deceased person’s estate and any disputes that may arise.
Call the NSW Wills & Estate Dispute Helpline
The NSW Wills & Estate Disputes Helpline can assist you in navigating the complicated and often emotional process of disputing an estate. Dealing with the death of a loved one can be a difficult and emotional time, and the last thing you need is the worry about disputing the estate of the will-maker. If you’ve been left out of a will or believe a will in which you have an interest is somehow not right and you are considering a dispute or estate litigation, call the NSW Wills & Estate Dispute Helpline today so we can advise you and help you get the benefits you are entitled to receive from the estate property.
