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The importance of being represented by a lawyer specialising in estate litigation when resolving a dispute over an estate

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Disputes among family members often erupt after a parent or relative dies, and the time comes to divide up the estate’s assets.    Unfortunately, these fights can result in lengthy and expensive legal actions.  Attwood Marshall Lawyers Estate Litigation Senior Associate Martin Mallon discusses a recent case that illustrates the importance of engaging a lawyer who specialises in estate disputes, issues to consider, and tips in resolving disputes.

A recent case

In a recent case, Attwood Marshall Lawyers represented a client involved in a complex estate dispute after her mother passed away in March 2020 in Queensland.

Our client’s mother left a Will that effectively:

  1. appointed our client as Executor
  2. gifted her a small specific sum of money
  3. split the rest and residue of the estate equally between the deceased’s children (the client and her brother).


Unfortunately, in a story that has become all too common, the client’s brother felt that his mother’s Will was unfair because she had allegedly gifted our client, her daughter, a property several years earlier.  The issue of “fairness” was disputed because the client’s brother had received benefits from his father during his lifetime.  The evidence showed there were benefits provided to both children from their parents during their lifetime.

The estate was modest and worth approximately $760,000.

The brother’s claim

As the brother was unhappy with his benefit under his mother’s Will, he elected to file an Application in the Supreme Court of Queensland seeking an order that he be awarded further provision from his mother’s estate for his proper maintenance and support pursuant to section 41 of the Succession Act 1981 (Qld)  

The brother was represented by a small law firm practising in most areas of law, as opposed to a large firm with departments that specialise in specific areas of law, like Attwood Marshall Lawyers estate litigation department.

The brother’s application was filed incorrectly and contained several deficiencies to complicate matters further.  For example, the brother filed an affidavit that contained allegations the deceased lacked capacity and was unduly influenced to sign her last purported Will and claimed he intended to pursue those claims despite a Grant of Probate having been issued.

If the brother genuinely intended to pursue those claims, there is a different process to ventilate those issues.  Further, the brother intermingled a personal dispute with his sister in the proceeding, which caused unnecessary confusion.  

The case was placed on the Wills and Estate Supervised List for application issues and the disagreement between the lawyers.  The list is ordinarily reserved for matters that require close management by the Court.

Before the involvement of Attwood Marshall Lawyers

The brother pursued his claim against his mother’s estate for over a year, dragging the client through costly and unnecessary litigation.  Once the matter was bought to Attwood Marshall Lawyers and we had the opportunity to review the file, it became apparent that the brother was not interested in his benefit and desired to drain the estate in legal fees, ultimately reducing his sister’s benefit.  The nature of his true intent was supported by evidence.

The client initially sought advice from an experienced and respected sole practitioner who practised in several areas.  However, due to the ongoing difficulties the client experienced with the other side and her brother’s refusal to make a reasonable agreement or take a common-sense approach, the practitioner recommended that she seek specialised advice.   

Involvement of Attwood Marshall Lawyers

This case is an example of the possible consequences when parties attempt to resolve complex estate disputes through law firms that do not have lawyers who specialise in these areas and the flow-on effect that unfolds causing significant costs, delay and emotional turmoil.

Upon review of the material, it was evident that the brother’s claim was misconceived.  He had no real prospects of success.  His application was, in our view, doomed to fail.  

The brother was in a solid financial position and in our view, he could not meet the elements of a Family Provision Application under the Succession Act 1981.

The client elected to proceed with an application seeking an order to summarily dismiss her brother’s application for further provision with costs.  These types of applications are rare, especially ones that are successful. The client was told by her previous lawyer that our team had recently successfully obtained the same type of order on another matter.

It was important for the client to move on from this protracted litigation.

Per our instructions, we made an offer of settlement which he did not accept within the required timeframe.  The brother attempted to resolve the matter on the same terms of the original offer, but that was rejected because there were incurred additional costs engaging Counsel in preparation for the Summary Dismissal Application.

Subsequently, the client was placed in a strong position to resolve all matters for a reduced amount.  The Estate Litigation Team were happy to resolve the client’s case before the substantive application was heard using proven strategies. This course of action ultimately saved the client and the estate, time, money, and inherent risks in seeking a determination at Court.

The brother was not awarded any of his costs which must have been substantial.  This meant that a large portion of his settlement may have gone to his lawyers to pay his costs.

As the client was concerned that the brother would attempt to ventilate the issues again due to his conduct, she obtained Final Orders to bring a complete end to the matter and provide her complete protection.

The benefits of engaging a lawyer who specialises in estate disputes

When resolving a dispute over an estate, it is essential to consult an experienced lawyer who specialises in these estate disputes.  By doing so, you can ensure that you are represented in the best possible way and that your interests are protected.  There are many benefits to be gained by engaging such a lawyer, including

  1. Expert advice and representation – A lawyer who specialises in estate disputes will have extensive knowledge of the process and the law surrounding these cases.    This means that they can provide you with expert advice and representation, ensuring that your case is handled effectively and efficiently.
  2. Greater chance of success – Having specialist representation gives you a higher prospect of achieving a favourable outcome in your dispute.  An experienced estate litigation lawyer understands the best strategies to pursue and is well-equipped to deal with any challenges that may arise.
  3. Peace of mind – By engaging a lawyer who specialises in estate disputes, you can rest assured knowing that you are in safe hands.  This can be invaluable during stressful and challenging times.
  4. Cost-effective – In most cases, engaging a lawyer who specialises in estate disputes will be more cost-effective than hiring a generalist lawyer.  This is because they will have the knowledge and experience necessary to deal with the complexities of these cases.  For example, a lawyer who practices exclusively in estate disputes may not need to engage Counsel.  They frequently seek advice on different points of law because of their specialist knowledge, which minimises costs to the client.
  5. Quicker – A lawyer who practices exclusively in estate disputes understands unique points of law and strategy to resolve matters in a more cost-effective and timely manner.


How an experienced estate litigation lawyer will achieve the best settlement

When it comes to resolving disputes over an estate, it’s essential to have an experienced estate litigation lawyer on your side.  They will guide you through the process and help you achieve the best possible outcome.  There are a lot of misconceptions and myths in this area of law, so it’s essential to obtain accurate advice.  The process of resolving an estate dispute can be complicated, and without engaging a lawyer who specialises in the area, you will likely not achieve the best result.

An experienced estate litigation lawyer will have the knowledge and expertise to deal with all aspects of the dispute, including negotiations, mediation and, if necessary, court proceedings. Lawyers who practice exclusively in estate disputes understand avenues that are available to their clients if the other side attempt to frustrate and delay the proceedings.

When should an estate litigation lawyer be instructed to act?

There are strict timeframes that apply in estate dispute matters, and if you miss a vital limitation deadline, you may lose your right of interest forever.  Any delay by you in seeking advice may prejudice your rights.

Attwood Marshall Lawyers offer 30-minute complimentary telephone advice with a lawyer in the estate litigation team. If you are involved in an estate dispute, you should seek advice at the earliest opportunity.

Attwood Marshall Lawyers – helping resolve disputes over an estate timely and professionally

Attwood Marshall Lawyers have one of the most experienced estate litigation departments that practice exclusively in this complex area of law.    In addition, our team has the state-specific knowledge to assist Executors throughout Queensland, New South Wales, and Victoria in defending claims made against an estate.

We understand that the role of an Executor can be onerous, especially when disputes arise between beneficiaries.  We are experienced in supporting executors in administering deceased estates and defending family provision claims and resolving disputes effectively so that the Executor can move on with the task of distributing the estate’s assets and upholding the wishes of the deceased.

A good defence requires a solid understanding of the role of the Executor and specialisation in estate litigation and Succession Law.  Many clients are referred to Attwood Marshall Lawyers after using their general lawyer or the lawyer who prepared the Will, only to be made aware that their time and money have been wasted.  Do not put yourself or the estate assets at risk of having to pay legal costs out of your pocket.  Obtain expert legal assistance as soon as you can to resolve your matter quickly!

If you are an Executor or a beneficiary of an estate and need advice, contact our Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071 at any time.

Read more:

How to defend a claim against an estate when you are appointed Executor in a Will

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

Dean Jones’ secret son sues over estate

 
 
 
 

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