How to Resolve Estate Disputes

When a loved one passes away, dealing with their estate is a stressful experience, and it can be complicated if the Will is disputed.

An estate dispute typically arises when someone feels they have been unfairly treated in the Will, or unfairly treated in how the estate has been administered.

These matters are extremely sensitive. They involve complex estate law, family law and personal dynamics that can make it difficult to reach a settlement out of court.

In this article, we’ll discuss how to resolve an estate dispute, common scenarios and whether you can dispute an estate in Queensland.

Who Can Dispute an Estate in Queensland?

In Queensland, the following people can dispute an estate:

• The deceased’s spouse or de facto partner – This includes a spouse who was divorced from the deceased but entitled to maintenance at the time of death.
• The deceased’s child – This includes step children, adopted children and children born outside of marriage. Grandchildren may be able to dispute an estate if they are a dependent of the deceased.
• The deceased’s dependents – This includes anyone who is wholly or substantially supported by the deceased at their time of death.

The people who can dispute an estate vary depending on your local jurisdiction. Speak to your Estate Lawyer to find out whether you have a valid dispute.

How to Resolve Estate Disputes

Estate disputes are typically resolved through negotiation or mediation. This process involves contacting the Executor (or their representative) to lodge your dispute and discuss a fair outcome.

There are several avenues for resolving disputes. These escalate from informal negotiations all the way to litigation:

1. Informal negotiations – Some estate disputes can be resolved through informal negotiations. This usually involves discussing the matter with the Executors and Beneficiaries and searching for a suitable outcome.
   
   While this process is informal, we still recommend engaging an Estates Lawyer to determine whether your dispute is valid and what you may be entitled to.
2. Settlement negotiations – A settlement negotiation is the next step up. This is a formal process that can be completed without the need for a mediator. Typically, the affected parties and their lawyers will hold a meeting to discuss the matter and find an appropriate solution. Involving lawyers in the settlement process ensures each party receives their legal entitlement, which makes it more difficult for the settlement to be disputed in court at a later date.
3. Mediation – If a settlement negotiation is unsuccessful, you can engage an impartial mediator to manage the process. Mediators are trained professionals who will hear each side of the story, review the relevant facts and propose an agreement.
   
   You can choose to engage in private mediation, or a court may refer you to a court-attached mediator to try and resolve the dispute without litigation.
4. Litigation – If the estate dispute cannot be resolved using any of the above options, it may proceed to court litigation. Disputing an estate through Queensland’s court system can be a time consuming and costly process.
   
   It may take months (or longer) to reach a resolution, but the judge will review the facts of the case, the conduct of everyone involved, and determine a legal and equitable outcome.
   
   Note that if the dispute involves the deceased estate or Executor, the estate will bear the legal costs, which may be substantial.

Common Causes for Estate Disputes

Estate disputes are complex. We see several common causes, including:

1. The Lack of a Will or Problems With the Will

If a person passes away without a valid Will, or if the Will is outdated or poorly drafted, it can create issues in executing their estate.

It’s important for your Will to be professionally drafted and executed by a capable person. A Will that’s unclear can invite misunderstandings and lead to disputes.

For example, Jonathan passes away without updating his Will. The only valid version of his Will is more than 10 years old, and his assets and family situation have changed substantially since it was created.

Since Jonathan’s Will refers to his ex-wife and assets he didn’t own at the time of his death, his current spouse may need to raise a dispute to receive a share of the estate.

2. Adequacy of Provision to Family Members

Certain family members may dispute an estate through the court if they are not included in a Will, or if they are treated unfairly by the terms of the Will. This is called a “Family Provision Application”.

For example, Barbara passes away with a valid Will. Four of her five children are named as beneficiaries of the Will, with each child receiving an equal share. The fifth child receives nothing and believes they have been treated unfairly, and may make a Family Provision Application to the court.

If a family provision dispute goes to court, the court will consider dozens of factors in making its decision. This includes:

• The value of the estate
• The age, sex, health and financial position of the disputing party
• Any previous gifts or transfers from the deceased to the disputing party
• Contributions the disputing party has made to the deceased’s estate
• The relationship between the deceased and the disputing party
• The character and conduct of the disputing party

This last point is important – courts have the discretion to refuse an application based on conduct. For this reason, we strongly recommend engaging a lawyer if you want to dispute an estate. Allowing your lawyer to handle all communications and negotiations ensures your conduct is never in question.

3. Disputes Between Executors and Beneficiaries

Estates may be disputed by the Executors or Beneficiaries if there are disagreements. This is common when a Will is outdated, unclear or poorly drafted, or if there is misconduct by an Executor.

This type of dispute may occur arise where:

• The Executors disagree on how the Will should be interpreted
• The Beneficiaries believe that the Executor has not performed their duty
• The Executor has wasted assets (e.g. selling property below market value)

Executing a Will is a demanding task that should only be undertaken by a competent person. It’s a good idea to nominate a professional (such as your lawyer or adviser) as one of your Executors so they can provide support.

4. Complex Family Dynamics

Family members are often the primary beneficiaries of an estate plan. This can be complicated where the family dynamic involves divorce, remarriage, blended families and Wills with provisions for future generations.

The best way to avoid this type of dispute is to update your estate plan whenever your life changes (e.g. if you get divorced, or if one of your children is no longer a dependent) and ensure your family members are treated equitably under the terms of the Will.

5. Undue Influence and Capacity

A Will is only valid if the willmaker has adequate “capacity” to make decisions about their estate. If there are concerns about the capacity of the willmaker (e.g. if the willmaker is unwell at the time the Will is created), the Will may be disputed or ruled invalid.

Similarly, a Will is not valid if the willmaker is subject to “undue influence” when creating the Will. This typically only applies if a Will is created under coercion and the terms of the Will do not reflect the wishes of the willmaker.

If you dispute an estate on the basis of capacity or undue influence, it’s your responsibility to prove these factors. This type of dispute should not be brought lightly.

Talk to FP Lawyers for Help With Drafting and Executing Your Estate Plan!

Estate plans are some of the most complex documents you will ever create. They represent many of your life’s achievements, and can contain complex instructions about your health, finances and family members.

The best way to avoid an estate dispute is to ensure your Will is professionally drafted and regularly updated. The Wills and Estates Lawyers at FP Lawyers can help with that!

We are experienced in drafting, maintaining, executing and providing representation for Wills and Estates matters. Our team can help you with anything from initial drafting through to lodging and litigating a dispute.

We take great care to provide sensitive service in all estate matters. It’s often a challenging subject, and we want to make sure you have all the support you need.

Contact us to find out more about estate disputes, or book a confidential consultation today.