Will dispute lawyers are often called on after someone has died and the assets they left behind need to be divided between disputing beneficiaries. If the deceased person has a valid last will and testament, then there should be little to no confusion about what their last wishes were and the entire process should go smoothly.
The word ‘should’ is emphasised because many times the division of a deceased’s assets is litigated by will dispute lawyers acting on behalf of beneficiaries that claim a grievance with the deceased’s final wishes. Most challenges to the deceased’s final wishes try to claim that they were not in a sound state of mind when they expressed their wishes or that they had accidentally neglected to explicitly specify something.
Let’s take a look at the 4 most common situations that require the services of will dispute lawyers.
Executors are too slow to begin the probate process
One of the most simple matters that will dispute lawyers are called to handle are situations where the executor (the person who is responsible for carrying out the deceased’s final wishes) has delayed beginning the probate process. While there is no specific timeframe under Australian law the probate process must begin, a general rule is that the executor should act within 12 months of the deceased’s death.
Failure to act within a year of the death gives beneficiaries grounds to appeal to the Supreme Court, and using will dispute lawyers they can obtain an enforceable deadline by which the executor must acquire a grant of probate.
Beneficiaries cannot agree on the fate of the estate property
Another common reason families engage will dispute lawyers is when benefactors disagree on whether or not the deceased’s family home should be sold or kept within family ownership. One of the common ways this issue is solved is that the party that wants to keep the family home buys out the controlling share from the other benefactor that wished to sell the property.
Sometimes the deceased’s last wishes dictate that beneficiaries have the option to buy the property from the estate, but even if this is not the case, will dispute lawyers can be used to reach an agreement. When multiple beneficiaries are putting money into buying the property from the estate, experts should be contacted so they can estimate how much each beneficiary should pay.
Beneficiaries accuse each other of undue influence over the deceased
The most contested and litigious issue that requires the services of will dispute lawyers is undoubtedly when one or multiple beneficiaries accuse another of exerting ‘undue influence’ over the deceased when they expressed their final wishes in writing.
Undue influence refers to when a beneficiary deliberately manipulates the deceased to give them a higher percentage of the estate’s assets in their final wishes. As you can image, these issues are highly controversial and hard to prove in court.
If the deceased’s final wishes are found to have been affected by undue influence, then the court can either defer to an earlier draft or can divide assets using intestacy rules.
Beneficiaries or potential beneficiaries identify issues with the document
Many people choose to draft their final wishes using informal means and fail to engage will dispute lawyers to help guide them. While these documents can be sound, more often than not they are littered with vague language and inconclusive declarations that invite litigation between disagreeing beneficiaries.
These kinds of situations can be avoided entirely if professional will dispute lawyers are engaged to help create a legally sound document detailing your final wishes after death.