The last thing anyone wants is for their loved ones, friends and family to become embroiled in estate litigation after their death. Estate litigation can take many forms, but it is almost always costly, time consuming and impassioned. It is important to be aware of the types of estate litigation so that you can consider whether you have done your best to arrange your affairs to minimise potential disputes after your death.

Determining the last Will made

In general terms, estate litigation falls into four broad categories concerning whether the last Will made by a person:

  1. Exists, can be located, is the original, can be proved to be made last in time, and that it has not been revoked (or cancelled) prior to death;
  2. Meets the formal requirements for a Will, or not;
  3. Is questionable because of the circumstances in which it was prepared or because it is unclear or ambiguous; and/or
  4. Does not adequately provide for certain categories of persons.

Can the original Will be located?

The first category is important because in order for the Court to issue a Grant of Probate or Letters of Administration, it must be satisfied the document provided to the Court as a deceased person’s last Will is in fact the last testamentary document made by the deceased.

Usually, a later testamentary document will revoke a former one, so it is essential that in order to avoid questions about which is your last Will, the original, dated document should be quickly and easily locatable. You can achieve this by entrusting the original document to your solicitor for safe keeping.

As recently as 20 May 2015, the Court was asked to issue a judgment in the Estate of the Late Stanley Trafford Fry [2015] NSWSC 598. In that case, the deceased had written notes on a copy of his existing Will and made other testamentary statements in separate documents kept with his Will. The notes and other documents were sought to be declared to be amendments to the deceased’s last wishes. Many problems arose because some amendments were from an earlier photocopy, and others were in original handwriting but using different pens. The other documents were not dated meaning it was difficult to determine when they were made, and what effect they had on each other. A complex and costly examination of the documents and contemporaneous evidence was necessary. Ultimately the original dated Will was found to be the last Will, but the whole issue could have been avoided had it been clear what the deceased’s testamentary intentions were.

Is it a valid Will?

The second category of estate litigation involves the operation of sections 6 and 8 of the Succession Act (NSW) 2006. These sections of law provide that in order for the Will to be considered valid, the Will must be in writing, signed by the testator or by some other person in the presence of and at the direction of the testator, and be witnessed by at least 2 independent witnesses over the age of 18 years. There are limited exceptions to these requirements which may allow the Court to dispense with formal validity rules. In order to satisfy the Court to accept a Will that does not meet the formal requirements, evidence needs to be provided addressing various issues, including the deceased person’s testamentary intentions. This can involve persons being required to take the witness stand and be cross-examined on their recollections of past events and conversations.

Were the wishes clearly defined?

The third category of disputes about Wills is often concerned with what is contained in the document itself, and the manner in which the document was created. As a Will usually disposes of all of the assets a person has accumulated in their lifetime, it is important that the person making the Will knows and approves of the contents of the Will, and that what is said in the Will carries out their wishes correctly.

Court proceedings involving rectification and construction issues often arise when either the Will doesn’t carry out the deceased’s persons intentions correctly, or it is unclear what the deceased actually meant in their Will. A classic example of rectification is where an intended beneficiary’s name is misspelled or they are incorrectly described in the Will. The Court can be asked to ‘fix’ or rectify the Will so as to allow the intended beneficiary to receive their share of the estate. If a statement in a Will could be interpreted in different ways and to different effects, the Court may be required to determine how the Will should be construed. In Finlay v Tucker [2015] NSWSC 560 the Will provided a wife ‘a right to occupy’ the matrimonial home, but also allowed the Trustee to sell the house to buy another for the wife to occupy. A dispute arose regarding what interests and rights were held by the different parties, and who was responsible for paying the maintenance and repair costs of the house and from where.

Many people would be aware that in order to make a valid Will the testator must be of sound mind. It is also necessary that they understand the nature and effect of a Will, what their assets and liabilities are, and who may have a moral claim for provision from the estate. Allegations of fraud, undue influence and suspicious circumstances also arise, particularly when Wills are made at home or without the independent assistance of a qualified solicitor. Disputes involving these types of issues are often complex, difficult to prove and rely on expert evidence. As a consequence, they are often very lengthy and expensive.

Is it an unfair will?

The fourth category of disputes is increasingly an issue as testators struggle to balance their obligations in blended family situations. Certain eligible persons can make an application to the Court for provision from the estate in the event they are not left with adequate provision. Eligible persons can include a spouse or former spouse, a de facto, a child (including adopted), a grandchild, a dependent member of the household, or a person who was living in a close personal relationship at the time of the deceased person’s death. If a claim is made against an estate, the legal costs involved in defending the claim will reduce the estate available for distribution.

Avoiding estate litigation

In order to avoid estate litigation, it is important to ensure:

    1. Your executor knows where your last, original Will is located, and that the document is clearly dated;
    2. Your last Will meets the formal requirements to be considered a valid Will;
    3. Your last Will has been prepared with a solicitor to ensure unsubstantiated allegations are less likely to be made and that the Will clearly sets out your wishes;
    4. That your last Will has been prepared in consideration of the various categories of persons that could make a claim on your estate if adequate provision is not made for them.

Specialist Estate Litigation lawyers

Seeing an experienced and qualified solicitor to assist you prepare your last Will is the best way to ensure your estate does not become embroiled in unnecessary litigation following your death. Contact Turner Freeman Lawyers on 13 43 63 today for further information.