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Part 2: Estate Litigation – just the facts Ma’am

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Attwood Marshall Lawyers Estate Litigation Senior Associate April Kennedy continues her discussion about the common misconceptions people have about contesting Wills and gives you ‘just the facts’ in her recent Law Talks interview on Radio 4CRB.

Fact 1: Contesting a Will is not immoral – that’s the Law!

For all the reasons that exist which may bring someone to contest a Will, there are equally a number of reasons that deter people from contesting a Will, even if they have a legal right to seek further provision from an estate.

Some people choose not to contest a Will because they feel they will face criticism from friends and family based on the negative connotations that surround this area of law.

As previously discussed in “Part 1: 10 common misconceptions about contesting Wills explained”, there are many reasons why a person might choose to contest a Will. It doesn’t make that person greedy or immoral; they are simply exercising their legal rights. In many cases, financial need is one of the biggest drivers for claims against the estate. This is especially relevant when you have a number of adult children with differing financial circumstances. It cuts both ways – we have seen very wealthy siblings contest a Will out of spite or jealousy because a less fortunate brother or sister has been left a larger percentage of the estate in the Will. Likewise, leaving an estate equally to adult children with differing circumstances can be unfair to a sibling with a disability or illness that has left them struggling financially.

Fact 2: Success rates are usually high for family provision claims

There can be a misconception from many people feeling that their claim is “a long shot”, but in actual fact most family provision claims have a high rate of success (depending on the facts and circumstances of their case, of course).

A person who is eligible under the Succession Act can bring a claim against the estate, and provided their circumstances warrant the making of the claim, they can expect to reach a favourable outcome.

Studies undertaken by the University of Queensland in 2015 found that:

  • 74% of family provision claims by family were successful (by children or partners, including ex-partners).
  • When a Will is contested, there is a high rate of success, whether through the Court or through mediation.
  • Will disputes are most commonly driven by both exclusion from the Will and significant disparity in distribution.

Fact 3: Children are the most common claimants in this area of law

Adult children are usually the most common claimants. This can stem from fragile family dynamics over decades and generations. Childhood issues tend to bubble underneath the surface, only to explode as the years go by.

Adult children are followed closely by the surviving spouse (whether that is the wife, husband or de facto). This is especially the case in circumstances where there are blended families or several marriages over that person’s lifetime.

Family provision claims aren’t just limited to children and spouses. There are many persons who fall under the eligibility criteria including:

  • adopted children;
  • stepchildren & de facto stepchildren;
  • foster children;
  • grandchildren;
  • ex-spouses; as well as
  • live-in carers.

Fact 4: Claims against the estate are common in blended families

It may not always be the case; however, it is certainly more common for Will contests to happen within blended families, or ‘Brady Bunch families”, as they are sometimes called.

For example, a husband (who has children of his own to a previous marriage) might make a Will leaving everything to the second wife entrusting her with “doing the right thing” and providing for his children with what she inherits from him. Or, on the other hand, the husband might leave everything to his children trusting they will look after his wife. This this doesn’t always happen, with the surviving spouse changing their Will shortly after the death to exclude the deceased husband’s children. This is when litigation ensues.

Fact 5: The estate is responsible for costs of litigation when someone makes a claim

The person bringing the claim against an estate is not automatically entitled to have their costs paid from the estate. However, a lot of firms take on cases on a ‘no-win no-fee’ basis if the case has good prospects of success. If the claim is successful, then the applicant will have their costs (or part of their costs) paid from the estate.

The general rule of thumb for payment of legal costs is that if the claimant succeeds with their case, they are entitled to payment of their reasonable legal costs from the estate.

However, if the claimant fails in their action, the Courts are more likely to consider ordering that the unsuccessful claimant pay the costs of the estate. This is usually unenforceable as most claimants do not have any assets.

Fact 6: The Executors must act reasonably to ensure their costs are paid from the estate

The Executors (i.e. the person defending the claim) are entitled to have their costs paid out of the estate. However, the Executors have a duty to act reasonably, consider the merit of each claim and attempt to resolve the matter at an early stage. There are cases where the Court has imposed costs capping orders on the Executor’s costs because they have acted unreasonably and gone out of their way to purposefully cause delays and withhold information and documentation from the applicant and their solicitors. A costs capping order means that the Executors are only allowed to pay a certain amount of their costs from the estate, with the balance to be paid by the Executors from their own pocket (which can be tens of thousands of dollars).

Read more: Defending a contested Will: your role as Executor

Fact 7: If someone promises to gift another person something of value in their Will, but their final Will does not reflect the promise made, in some circumstances their estate can be bound to that promise

The ‘deathbed promise: A classic example of this is when a person is terminally ill, perhaps only has days or hours left to live, and they promise items or property of value to family members. Generally, a person cannot rely on a deathbed promise to claim their stake over that property. It needs to be documented or formalised in some way.

Testamentary or promissory estoppel: This is an emerging area of law in estate litigation and is quite different to a deathbed promise. Promises made during your lifetime may very well bind your estate even after you die.  There are certain elements that need to be satisfied for an action like this to be successful.

Read more: Broken promises – making a claim when a promise hasn’t materialised in someone’s Will

These types of cases are more prevalent in generational farming families and cases involving disputes over family farms. Generally, where a child works on their parents’ farm for years for little or no remuneration, in reliance upon promises made by the parents that they will eventually inherit the farm.

Fact 8: Not all estate disputes end up in Court

The idea of a lengthy and expensive court battle is one of the main deterrents for anyone considering challenging an estate. However, it is a common misconception that estate disputes always end up being fought in court.

Only a small percentage of cases end up in court, and it is estimated that approximately 85% of cases are settled at mediation.

Mediation is compulsory in this area of law.

Mediation is a common and very successful method to resolve Will contests. A mediation can be held as soon as the parties and the Mediator agree on a time and place, making it much quicker than going through court proceedings.

Mediation is also confidential, so only the parties involved in the dispute, the mediator and lawyers need to attend.

This often minimises the emotional impact on family and friends, as well as keeping costs low.

Mediations are increasingly popular for a number of reasons, including the fact you have greater control over the proceedings as you maintain ownership of the issues and participate in the resolution, rather than having a judge make that decision for you.

Will disputes put a huge strain on family relations and litigation can add to this bitterness. As mediation saves time and money, it can also sometimes reduce the stress and tension between families, allowing them to move on sooner.

How can Attwood Marshall Lawyers help?

Attwood Marshall Lawyers have one of the largest and most experienced estate litigation teams in Queensland, with senior lawyers who practice exclusively in this complex area of law.

We are here to help you get what you are fairly and legally entitled to or to uphold the wishes of the deceased if you are an executor in an estate.

Most estate litigation cases are accepted on a ‘no win no fee’ or deferred payment basis. There are no costs required upfront to commence your claim (subject to our determination of you having reasonable prospects of success).

To discuss any disputes over Wills and estates, contact Estate Litigation Department Manager, Amanda Heather, on 1800 621 071, direct line 07 5506 8245 or email aheather@attwoodmarshall.com.au. You can visit our experienced team at any of our conveniently located offices at Robina Town CentreCoolangattaKingscliffBrisbaneSydney or Melbourne.

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