Types of Will disputes

Provision claim

Provision claims are by far the most common form of Will dispute. Under Queensland law, certain people (such as children, spouses, de facto partners and financial dependents) have the right to challenge a Will if they have been left out of the Will or they have been given an insufficient proportion of the estate.

Provision is obtained either by negotiating a grant of provision with the estate’s representatives or by order of the court.

You will need to demonstrate that you have a financial need for provision from the estate (“Need”), and that inadequate provision was made for you in the Will (“Inadequacy”).

Like most areas of law, the demonstration and ultimate determination of need and inadequacy is a complicated process that calls for a close analysis of all of the relevant circumstances, on a case by case basis.

Generally, to demonstrate need, you will be required to produce evidence that shows that you have one or more of the following circumstances:

• 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.

Once need has been demonstrated, you must establish inadequacy by showing that 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 team can expertly assess your situation and help you determine if you’re entitled to further provision. We can also help you negotiate that provision, either with the estate’s representatives or at court, and give you a better chance of success.

Cairns Wills and Estate Lawyers 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 maker’s wishes are not clearly set out in the will and/or
• 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.

Quite often, the interpretation of the Will can be the difference between you receiving what the Will maker rightfully intended you to, and getting nothing.

It is critical that interpretation issues are identified and dealt with at the earliest possible opportunity. This usually involves you communicating your interpretation of a Will to an executor and the beneficiaries as clearly as possible, and then asking them to confirm that they agree.

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

To give yourself the best chance of getting a favourable interpretation from the court, speak with Cairns Wills and Estate Lawyers today.

Capacity dispute

You can challenge a Will if you believe that the person who made the Will did not have full mental capacity (“testamentary capacity”) at the time. To make a valid Will, you need to be at least 18 years old, and have the appropriate mental capacity – that is, you fully understand the significance of making a Will, and all that it involves.

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 Will makers medical history and, where available, medical records from both the time the Will was made and past records
• the records of the solicitor who drew the Will to determine what steps were taken to establish the Will maker’s capacity at the time, and whether those steps were adequate in the circumstances.

Where it can be demonstrated that a person lacked capacity at the time their Will was made, the Will can be set aside and either an earlier Will is reinstated, or the person is deemed to have died intestate (i.e. without a valid Will).

If you need to challenge or defend a Will in a capacity dispute, speak with one of our wills and estates lawyers in Cairns today.

Undue influence dispute

These disputes arise when someone puts pressure on the Will maker to write their Will in a certain way, and not in a way that reflects their true intentions.

Common examples of when this occurs are:

• when the Will maker’s current partner/spouse persuades the Will maker to exclude children from the Will maker’s prior relationship, and leave the estate to the partner/spouse
• when one sibling persuades a parent to leave a larger portion 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 can be demonstrated that a Will maker was subjected to undue influence at the time they made their Will, the Will can be set aside.

It can be very challenging to establish that undue influence has occurred. Early action in undue influence disputes is critical to ensure that all available evidence is obtained before it’s lost or destroyed.

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

Executor dispute

An executor dispute arises when the executor of an estate acts inappropriately in the administration of the estate. This can 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
• dealing with the assets of the estate inappropriately, 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, and/or to 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 Cairns Wills and Estate Lawyers today.