Avoiding Deceased Estate Litigation

No-one wants their loved ones, friends and family to become embroiled in estate litigation and disputes after their death. Estate litigation can take many forms, but it is almost always costly, time-consuming and impassioned.

It is important to arrange your affairs to minimise potential disputes after your death. In general terms, estate litigation falls into four broad categories that test:

1. Does a Will exist, can it be located, is it the original, can it be proved to be the last Will, and has it been revoked (or cancelled) prior to death;

2. Does a Will meet the formal requirements to be called a Will, or not;

3. Is the Will questionable because of the circumstances in which it was prepared or because it is unclear or ambiguous; and/or

4. Does the Will fail to adequately provide for certain categories of persons.

The first category is important because, in order for the Supreme Court to validate/probate a Will, it must be satisfied the document provided is, in fact, the last and only 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 your original Will to your solicitor for safe keeping.

The second category of estate litigation involves the operation of sections 6 and 8 of the Succession Act (NSW) 2006. These sections set out that a valid 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 two independent witnesses over the age of 18 years. There are limited exceptions which may allow the Court to dispense with formal validity requirements.

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 document. In order to make a valid Will the testator (will maker) must be of sound mind, memory and understanding. They must understand the nature and effect of a Will, what their assets and liabilities are, and who they may have an obligation to provide for. 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.

The fourth category of disputes is increasingly an issue as testators struggle to balance their obligations in blended family situations. If an eligible person is left without adequate provision from an estate, they can make an application to the Court for relief. 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 someone living in a close personal relationship with the deceased.

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

1. Your executor knows where your last, original and clearly dated Will is located;

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 the Will clearly sets out your wishes and unsubstantiated allegations are less likely to be made; and

4. Your last Will has been prepared in consideration of the various categories of persons that could make a claim on your estate.

Seeing an experienced and qualified solicitor to assist you to prepare your last Will is the best way to ensure your estate does not become embroiled in unnecessary litigation following your death.

Ensure you get the right advice and avoid these risks by contacting Turner Freeman Lawyers. For more information and contact details visit www.turnerfreemanlawyers.com.au