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Will

By Melissa Tucker

In an ideal world the family kitchen table used to be the preferred forum for resolving messy disputes over inheritance. But now we hear stories of brothers resorting to fisticuffs, adults not speaking to their parents and forced sales of much-loved properties as a result of deep divisions and long-held resentments. More and more jealous children and cheated wives and husbands alike are taking other family members to Court.

The number of families contesting relative’s will has risen significantly in recent times with many of the high profile and celebrity estate disputes being played out in the public arena. However, don’t assume that it doesn’t happen to everyday people because it does. Even though your family dispute may not make the papers, the effect on a family can be equally as emotional and devastating.

People will tell me, “Oh, that will never happen in our family. Our children are so close, there aren’t going to be any problems.” However things can get really ugly with beneficiaries fighting over the craziest things. Usually it’s something that’s a reminder of their childhood. Pretty soon siblings will descend into the “Mum always liked you best” or “You always got your way”. Rationality can soon fly out the window and situations can turn even worse with siblings stealing items from the estate or bullying another into giving up a cherished item, causing hard feelings all around.

The most common grievance is that the will is ‘unfair”, along with the surge in documents being contested because of alleged mistakes, or the fact that the person making the Will was incapacitated or was put under undue pressure.

A recent case before the New South Wales Supreme Court involved a pair of Sydney brothers who challenged the will of their late grandfather, who left his 50,000 acre farm to their mother. Their grandfather told the boys his farm – made up of nine smaller farmers – would pass to the brothers once their mother died. But the brothers had other ideas and have challenged the Will, arguing they deserved to inherit it all now, and their mother should receive nothing, or just a pension. The fight could mean the brothers end up with nothing.

When they made the fateful decision to commence the proceedings, suing their mother as the executor of their grandfather’s estate and claiming they were entitled to the entirety of his property – to the exclusion of their mother – they produced an outcome which [their grandfather] would not have been anticipated. Affronted by their conduct, their mother made the decision to leave her sons out of her own will, so that, absent a court order, or a change of heart by her, the brothers will now never receive the inheritance to which they have long aspired.

Supreme Court Justice Michael Pembroke has ruled that the brothers deserved to inherit something from their grandfather, but urged them to settle the case with their mother in mediation. If not settled at mediation the case will return to the court later this year to decide whether the brothers should receive cash or one of the nine farms inherited by their mother.

Many people have no idea that their wills could trigger litigation. They think leaving a will they have a right to do whatever they want, which is not necessarily the case.

On the flip side if you don’t have an Estate Plan at all what you are really saying is “let the Court decide who gets my property, who will be in charge and how my estate will be administered’. I am sure most of us would rather make those decisions ourselves.

Are you currently faced with this situation?

  • You don’t have an Estate Plan?
  • You haven’t reviewed your Estate Plan in a couple of years?
  • You need further advice in protecting your interest as a beneficiary of a contested Will?
  • You need further advice in contesting a Will?

We offer FREE, NO OBLIGATION CONSULTATIONS with you by telephone, or in person at any Attwood Marshall branch. For free, no obligation advice, please contact Lesley or April today on 1800 621 071 or email us at info@attwoodmarshall.com.au.

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Melissa Tucker

Melissa Tucker

  • Senior Associate
  • Wills and Estates
  • Direct line: (07) 5553 5803
  • Mobile: 0411 046 805