Friday 29th April 2022 from 9am

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Contesting Wills and keeping your claim out of court


Attwood Marshall Lawyers Estate Litigation Special Counsel April Kennedy recently joined Robyn Hyland for ‘Law Talks’ on Radio 4CRB, providing insight into how to avoid the courtroom when seeking further provision from an estate or responding as an executor to a claim. Disputes over deceased estates can quickly escalate into costly and emotionally draining legal battles. Fortunately, alternative strategies exist to resolve conflicts early on.

Estate litigation is an area of law that is incredibly emotive.

Grieving individuals often struggle with shock and loss following the death of a loved one, making it challenging to then navigate legal disputes that may arise over the person’s estate. Complex family dynamics can further complicate the situation, as longstanding tensions and unresolved issues come to the forefront.

Whether you are the one contesting a Will, or if you are an executor or administrator defending a family provision claim, there are myriad of emotions to deal with as all parties work towards a reasonable and fair resolution.

Estate litigation lawyers play a crucial role in providing guidance and support, helping everyone involved stay focused on finding a suitable outcome with an aim to avoid the matter going to trial.

Key factors contributing to prolonged estate disputes

Several prevalent factors frequently contribute to estate disputes that proceed to trial. The most common issues usually involve:

  • Complex estates with substantial assets: Complex estates with considerable assets often give rise to intricate legal issues, prolonging the resolution process.  
  • Family dynamics: Strained relationships or estrangement can bring raw emotions to the surface. When combined with grief, negotiations often become complicated, impacting all parties’ ability to reach an agreement effectively.  
  • Entitlement or greed: Issues of entitlement can arise when individuals have differing perceptions of what is “fair”. What is considered fair within a family may differ from what the law deems to be “adequate provision” in the context of family provision. Family provision law isn’t about ‘fairness’ or compensation for past wrongs, and this is where people can get tied up.
  • Executor conduct: Executor bias or conflicts can exacerbate tensions and hinder progress. Executors who fail to communicate with beneficiaries or prefer their own interests may face removal from their position, further prolonging the estate administration process.
  • Attitude: In some cases, one party may be unwilling to engage in meaningful negotiations, prolonging the resolution process for everyone, despite the other party’s willingness to compromise and settle the matter. Usually this comes down to the individual being emotionally driven, as opposed to being commercially driven.
  • Poor legal representation: Choosing to represent oneself or engaging a lawyer inexperienced in litigious matters can significantly impact the effectiveness of reaching an agreement.
  • Multiple parties: When there are multiple parties to the proceedings, then it can complicate matters and make it harder to find a resolution – each party has their own position and oftentimes their own lawyers.

It is important to highlight that only a small percentage of estate disputes end up in court before a judge. In fact, approximately 9 in 10 claims are settled either by negotiation or mediation without going to trial.

Early resolution is favoured because it offers privacy, is more cost-effective, and it gives both parties greater control over the outcome. It empowers parties to find mutually acceptable solutions, minimising the emotional toll on families and friends.

Timeline of a family provision claim

Resolving a dispute over an estate’s distribution can vary in duration depending on factors such as complexity and the cooperation of all parties involved. When it comes to contesting a Will, specific timelines dictate when a claim can be initiated, providing a framework for the resolution process.

Typically, contesting a Will involves the following steps:

  1. The claimant notifies the executor of their intention to contest the Will.
  2. In QLD and NSW, this notification must occur within 6 months of the date of death.
  3. Upon receiving notice, the executor is required to halt or delay distributing the estate until the claim has been resolved.
  4. Informal negotiations between the parties and their legal representatives may occur once notice has been given to the executor or administrator. If a dispute can be resolved through these informal negotiations, the claim can often be settled within 6 to 12 months following the date of death. If negotiations are successful, then a formal agreement can be drawn up to protect all parties and to finalise the matter.

However, if court proceedings become necessary, which can be inevitable due to limitation periods or if early negotiations fail, it typically takes 2 to 4 months after filing the claim to reach mediation, extending the resolution process up to 18 months after date of death.

Alternative dispute resolution (ADR) is mandated in Family Provision Applications. Mediations are a form of alternative dispute resolution, whereby the parties involved in the dispute, including the executor of the estate and the individual contesting the Will, agree to meet with a mediator. During mediation, the mediator facilitates communication between the parties, assists them in identifying their respective interests and concerns, and guides them in exploring potential solutions to the dispute. The mediator does not make decisions or impose outcomes but instead helps the parties reach a voluntary agreement.

If negotiations fail at mediation, and the dispute proceeds to trial, the stakes become much higher and this can add another 6 to 12 months to the overall resolution time.

How soon can a mediation be scheduled in an estate dispute?

Mediation typically occurs after court proceedings have been filed and is commonly set for a period from 2 to 4 months following the application for further provision from an estate.  

A productive mediation can depend on several factors, including:

  • Both parties’ readiness and commitment to prepare for and participate in mediation.
  • The availability of a qualified mediator.
  • Any pre-requisites, such as exchanging relevant documents or attending preliminary meetings must be addressed before mediation.  
  • Identifying and narrowing the keys issues in dispute so that both parties can properly prepare and present their case.
  • Adopting a commercial mindset with the view to reaching a settlement.

Having an experienced estate litigation lawyer by your side ensures that you’re equipped with all necessary documents, expediting the mediation process without unnecessary delays.

Tips to resolving estate disputes

  1. Speak to an experienced estate litigation lawyer: Begin by consulting with a lawyer who specialises in this complex area. Their expertise can provide insight into your case’s viability and potential outcomes. Early legal guidance is crucial and can often lead to resolution without resorting to court proceedings.
  2. Focus on key issues: Prioritise what matters most to you. While sentimental attachments are understandable, consider the financial and emotional costs of prolonged disputes. Be open to negotiation and compromise to expedite resolution.
  3. Consider costs vs outcome: Understand that prolonging the dispute out of spite or principle can escalate legal expenses. Keep your goals realistic and weigh the financial implications of your actions.
  4. Foster cooperation: Recognise that a cooperative approach from both parties is essential for a quick resolution. Positive attitudes and willingness to engage in constructive conversations can significantly influence the dispute’s outcome, potentially avoiding the need for litigation.

Attwood Marshall Lawyers – experts in estate litigation

Succession Law and contesting Wills are complex issues, and when someone makes a family provision claim, emotions are generally running high. It is essential to get the right advice from the start and have an experienced lawyer guide you through the dispute resolution process to ensure the matter can be resolved at the earliest opportunity. Trusting an experienced lawyer often means they can help carry the burden and reduce family conflict.

For expert advice on your rights in estate disputes, please get in touch with our Estate Litigation Department Manager Amanda Heather, on direct line 07 5506 8245, email or call 1800 621 071 any time.

Disputes can be drastically minimised, or avoided altogether, if individuals have a valid Will that appoints an executor and leaves clear instructions on how their estate should be dealt with upon their death.

For all your estate planning needs, please contact our Wills and Estates Department Manager Donna Tolley, on direct line 07 5506 8241, email or free call 1800 621 071 anytime.

Our team are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, KingscliffBrisbaneSydney, and Melbourne.

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april kennedy estate litigation lawyer

April Kennedy

Special Counsel
Estate Litigation

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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