Types of Will disputes

Here are the five most common types of will disputes in QLD (Queensland).

Provision claim

Provision claims are by far the most common form of Will dispute. When someone dies, under Queensland law, there are certain people who have the right to challenge a Will. If the deceased’s children, spouses, de facto partners or financial dependents believe they have been left out of the Will or they have been given an insufficient proportion of the estate, this can lead to a provision claim.

You can get a provision by negotiating a grant of provision with the estate’s representatives or by order of the court.

In order for this to happen you must show that you have a financial need from the estate (“Need”), and that the Will did not give you enough (“Inadequacy”).

Determining need and inadequacy in law is complex. It requires analysing all relevant circumstances on a case-by-case basis, similar to other areas of law.

To show there is a need, you must provide evidence of having one or more of these situations:

• you don’t own your own home, or you have a mortgage
• you have financial dependents such as children
• you have debt owing to a financial institution or another third party
• your weekly wage versus your weekly expenditure makes it hard to make ends meet
• you are in receipt of some kind of government benefit/s
• you are unemployed, retired or in receipt of a disability pension.

Alongside demonstrating a need, you must also establish inadequacy. Inadequacy can be established by demonstrating you have not been included in a Will, or one or more of the following:

• that the share of the estate left to you in the Will is inadequate for your needs
• that the financial circumstances of the other beneficiaries of the estate are better than your own
• that the size of the estate justifies you receiving a greater share than that which has been left to you.

Our Townsville Wills and Estate Lawyers can assess your situation and help you determine if you’re entitled to further provision. We can assist you in negotiating that provision, whether it is with the estate’s representatives or in court, and increase your chances of success.

We accept instructions on a no-win, no-fee basis in most cases – contact us to find out what we can do for you.

Interpretation dispute

Interpretation disputes arise when:

• the Will does not clearly set out the Will maker’s wishes
• the Will maker holds assets that are not adequately addressed in the Will and/or
• the Will maker fails to identify all of their assets in their Will.

In any of these scenarios, the interpretation of the Will can be the difference between you receiving what the Will maker rightfully intended you to, and getting nothing.

Identifying and resolving interpretation issues at the earliest possible opportunity is critical. Typically, this involves explaining your understanding of a Will to the Executor and the beneficiaries. After that, you need to obtain their confirmation.

If there is a disagreement, it may become necessary to file a court application so that a judge can decide. Like most legal proceedings, the process of obtaining a ruling is complex.

Speak with Townsville Wills and Estate Lawyers now for the best chance of a favourable interpretation.

Capacity dispute

If you suspect that the person who created a Will lacked complete mental capacity (what is known as “testamentary capacity”) at the time, you may challenge the Will. To create a legally binding Will, you must be at least 18 years old and have the necessary mental capacity, meaning that you fully comprehend the importance of creating a Will and everything it entails.

Someone can lack capacity if they are suffering from a condition such as:

• dementia or Alzheimer’s disease
• a head injury
• some form of mental condition or infection which impairs cognitive function.

The process of demonstrating that a person lacked testamentary capacity usually involves a close examination of evidence such as:

• the medical history and records of the person who made the Will, including past records if they exist
• the solicitor’s records to determine the actions taken to ensure the Will maker was mentally capable, and whether those steps were sufficient.

If it is proven that a person lacked capacity at the time their Will was made, the Will can be set aside. Instead, either an earlier Will can be used, or it can be assumed the person died without a Will (or died intestate).

Contact our Wills and Estates lawyers in Townsville today for assistance with challenging or defending a Will in a capacity dispute.

Undue influence dispute

Disputes can arise when someone has been pressured to make a Will that does not reflect their wishes.

Common examples of when this occurs are:

• when the person making the Will is convinced by their current partner/spouse to exclude their children from a previous relationship. Instead, they decide to leave the estate to their partner/spouse.
• when one sibling persuades a parent to leave a larger share of the estate to them than to their brothers or sisters
• when a parent persuades their adult child to make no (or inadequate) gift to that child’s partner.

If it is proven that someone was forced to make their Will, the Will can be set aside.

It can be extremely difficult to establish that undue influence has occurred. Acting quickly in undue influence disputes is crucial to gather all evidence before it’s lost or destroyed.

Townsville Wills and Estate Lawyers can help you investigate and get the right evidence to support your claim. Call us today.

Executor dispute

A conflict involving the executor can occur if the individual responsible for managing an estate behaves improperly during the estate’s administration. This might include:

• delaying administration of the estate
• failing to make payments to beneficiaries in accordance with the Will
• acting outside the terms of the Will
• acting in a biased or partisan fashion
• incurring excessive fees and costs in the administration of the estate
• inappropriately handling estate assets, such as selling them at undervalue or leasing them on uncommercial terms.

If you are the beneficiary of an estate and feel that the executor has acted inappropriately, you have the right to get the executor removed. Alternatively, you can seek compensation from the executor if you have suffered any loss as a result of their conduct.

Executor disputes can usually be resolved without the need to go to court if they are dealt with early.

For expert local advice and assistance, contact Townsville Wills and Estate Lawyers today.