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Will disputes are common and can happen for a variety of reasons, ranging from questions about how specific sentences should be understood to concerns about how the Will was made. Understanding the most common grounds for challenging a Will can help you anticipate and address possible conflicts before they happen.
Here we explore the various types of Will disputes, why they happen and how they can be resolved.
Will disputes happen when there is disagreement about what is written in a Will or how the person’s estate should be distributed. These disputes can involve executors, beneficiaries, or even third parties – such as friends, neighbours or other acquaintances of the deceased..
Wills are commonly challenged because there is a:
Like your family, every Will dispute is unique and comes with its own set of circumstances that a lawyer must carefully consider before providing advice.
We’ve helped many people resolve Will disputes, with 98% of our cases settling quickly and discreetly out of court. Below are some of the most common grounds for challenging a Will that we see.
This is the most common type of challenge. It occurs when someone close to the person who died believes they weren't properly provided for in the Will and seeks a larger part of the estate.
These can be some of the most emotionally difficult claims, and we highly recommend talking to a lawyer as they can help by removing some of the burden at a personal level.
You're generally eligible to contest a Will if you fall into these three groups:
anyone who is dependent on the deceased (this differs from state to state).
Capacity simply means whether the deceased had the mental ability to understand what they were doing at the time the Will was made. This can include whether they understood:
If a person didn’t have the capacity to understand these things, then their Will could be ruled invalid and either replaced by an earlier Will or the estate distributed according to state legislation.
Different factors can lead to a person's lack of capacity, and a lawyer will need to consider these before they can provide advice. One common reason is a medical condition, such as dementia or psychosis.
A Will can also be challenged if it is believed the deceased was pressured or coerced into creating or changing a Will in a way that didn’t properly reflect their true wishes
This can happen in situations where the deceased is vulnerable and could have been manipulated by someone they trust. The person may also have been ‘unduly influenced’ or been pressured during their decision-making (this includes blackmail and guilt tripping), which led to them writing or changing their Will.
This is one of the most difficult grounds to dispute a Will because the challenger must show how the deceased person was unduly influenced.
Disputes about the improper execution of a Will focus on whether the Will was signed and witnessed according to the legal requirements.
If a Will was not executed properly, it can be declared invalid. This could lead to significant legal challenges and disputes among beneficiaries and third parties.
These types of disputes typically happen when a lawyer was not involved in creating the Will or updates or changes to the Will were not properly executed.
If the wording of a Will is vague, ambiguous or confusing then there may be grounds to challenge its interpretation. These disputes often require a judge to interpret the Will’s language and decide what the deceased was trying to say. This can be a complicated and time-consuming process.
If the deceased had debt before they died, the people they owed money to (called creditors) would have grounds to challenge the Will and claim the estate owes them money.
This type of dispute complicates the distribution of the estate, and the executor may need to pay back these debts before it can give the remaining assets to the Will’s beneficiaries.
Because there is typically a paper trail of contracts and receipts, these types of claims can be relatively straightforward and easy to resolve.
If the Will creates a trust, there may be disagreements about the terms that created the trust or how it should be administered. This is a common dispute when there is more than one executor.
If you're a beneficiary of a Will and you believe the executor has failed at their job, you can ask the court to hold them to account or remove them.
These disputes usually require a court to interpret the trust’s terms and provide direction so that it is administered as the deceased wanted it.
These claims aim to fix a typographical error, incorrect description or other mistake in a Will but involve more than simply fixing a typo. These corrections could alter the meaning of the text and how the estate is distributed.
Attempts to fix errors in a Will can be challenging because changing the text might also raise issues about the Will being vague or ambiguous. Our lawyers have extensive experience in complicated disputes like these and can help you gather evidence to support or disprove errors in a Will.
Speak to one of our experienced Will dispute lawyers today, we're here to help.
Will disputes usually require lawyers with a deep understanding of succession law to become involved, and resolving the dispute can be a complicated process.
How quickly a dispute can be solved depends on a variety of factors, including:
In most cases, lawyers will try to help you resolve the dispute using mediation, where both parties discuss the matter and try to settle it themselves. If that’s unsuccessful, the parties can go to court and have a judge settle their dispute.
Each approach has its own set of procedures, benefits, and drawbacks and will often depend on the individuals involved in the dispute. Our lawyers can guide you through your options and suggest what would work best for your situation.
Going to court can be expensive and time-consuming, so lawyers try to resolve a dispute through mediation.
In mediation, a neutral third party – called a mediator – works with all parties to help them resolve the dispute on their own and the outcome isn’t binding.
Whether you choose mediation it involve negotiation and compromise, often resulting in quicker and less contentious solutions, with fewer costs. These options might also be the best way to keep the relationships between everyone intact.
We have a long history of helping people settle disputes, with 98% of our cases settling quickly and discreetly out of court.
Taking your dispute to court involves filing a claim, then presenting evidence to a judge as part of a trial.
There are two main things you should consider when thinking about taking your dispute to court:
Our Will dispute lawyers can guide you through the court process in more detail after discussing the details of the dispute.
Every claim is different, and the laws surrounding Will disputes are complex and vary from state to state. We work together with you to secure proper and adequate provision from the estate. We'll do everything we can to thoroughly prepare your case and negotiate an outcome that recognises your relationship with the deceased, and your financial need.
We’ve represented Australian families for decades, and 98% of our cases settle quickly out of court.
Your first consultation is obligation-free. After that, we work with you on a 'no win, no fee'* basis.
To prepare for a Will dispute you’ll need to gather relevant documents, consult with legal experts, and carefully consider your legal strategy.
This preparation is crucial for building a strong case and increasing the likelihood of a favourable result. Our team will guide you on what documentation and strategies will work best for your dispute.
You'll meet with one of our lawyers to talk through your options. We'll assess your claim and advise you if it is strong enough to proceed with.
We’ll explain how we think we can run your case to get the best possible outcome with minimal stress.
We settle most will disputes quickly and discreetly out of court. If a negotiated settlement is not possible, we'll work with you to prepare the matter for trial.
Below are some proactive steps you can take to significantly reduce the chance of conflict after a loved one’s death.
A clear and comprehensive Will is always the best way to prevent a dispute. This means the Will uses precise and clear language, explains its intentions, and thinks ahead about possible areas of conflict.
The best way to do this is to get legal assistance with drafting a Will. This is because lawyers are trained in what words, phrases, and subjects typically lead to disputes and can help write the Will in a way that removes confusion.
There are a few simple strategies you can take to avoid a Will dispute, including:
Our team of Will dispute lawyers are here to guide you through every step of challenging a Will. We have a long history of helping people contest a Will and settling Will disputes in Australia.
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We are here to help. Give us a call, request a call back or use our free claim check tool to get in touch with our friendly legal team. With local knowledge and a national network of experts, we have the experience you can count on.
We have lawyers who specialise in a range of legal claims who travel to Australian Capital Territory. If you need a lawyer in Canberra or elsewhere in Australian Capital Territory, please call us on 1800 675 346.
We have lawyers who specialise in a range of legal claims who travel to Tasmania. If you need a lawyer in Hobart, Launceston or elsewhere in Tasmania, please call us on 1800 675 346.
