6 Reasons Your Will Might Be Contested

26 December 2024

Understanding the 6 most common reasons behind Will’s disputes is crucial for effective estate planning and management. Will disputes often arise after a person dies, and the estate assets must be distributed to the beneficiaries. Particularly in large families or complex/blended family dynamics, for instance, half or step-relatives, it is not common for disputes to arise about the Will. Even if the testator’s instructions are clear, problems may still arise. 

1. Beneficiaries disagree on the disposal of the estate property

A dispute between the beneficiaries can often arise concerning the estate property and whether it is best to sell it and each receive a portion of the sale proceeds or keep it in the family so future generations can enjoy and benefit from it. The solution to this issue is that the beneficiary who wants to keep the property must buy out the interest of the other beneficiaries who prefer to sell the property. For this purpose an expert valuation of the property should be obtained to determine a price for which the beneficiaries should be paid out. Though obtaining a valuation doesn’t sound like a difficult hurdle, it can often be the source of a dispute because valuations may be obtained that value the property slightly differently. 

Occasionally, a testator will prepare for a situation such as this one and will have a provision in their Will that allows one or more of the beneficiaries to claim residence of the estate property by paying out any other beneficiaries. With any luck, the testator will give the beneficiary specific direction on how the property should be valued. For example, the provision may state that a local agent must complete the valuation and may give a method of calculating the valuation. Section 49 of the Wills Act 1997 (Vic) provides that if the Will gives no method of calculating the valuation, the property should be valued at the date of the testator’s death made by a competent valuer. 

2. Part IV claims in Will disputes 

Testamentary freedom grants individuals the right to make their Will as they see fit. However, this freedom comes with the responsibility to provide for those they have a moral duty to support. Under s 90A of the Administration and Probate Act 1958 (Vic), eligible persons can apply to the Court for further provision from the estate, a claim commonly known as a Part IV claim.

Section 90 of the Administration and Probate Act 1958 (Vic) defines who are eligible persons. Some examples of eligible persons include: 

  • A spouse or domestic partner of the deceased. 
  • A child of the deceased (including adoption or step-children). 
  • A former spouse or domestic partner of the deceased (who has not finalised Family Law proceedings). 
  • A registered carer of the deceased. 
  • A grandchild of the deceased. 
  • A person who was a member of the deceased’s household. 
  • A person who, for a substantial period of time, believed the deceased to be their parent and was treated as a natural child. 

To establish a claim for further provision, the deceased must have had a moral duty to provide for the eligible person and that the Will fails to make adequate provision for their proper maintenance and support. To determine, the Court will consider many factors, which include the following: 

  • The relationship between the eligible person and the deceased 
  • The financial means and needs of the eligible person 
  • The health status of the eligible person. 

A Part IV claim is a common reason behind Will disputes and can significantly delay the distribution of the estate assets to the beneficiaries. 

3. Delays by executor 

When a testator creates a Will, an executor is appointed. An executor is responsible for seeing to it that the deceased wishes are met and organising the probate application in the Supreme Court. It is important when selecting an executor that you select someone who is efficient and organised, as it is too often that the distribution of an estate is delayed by an executor who takes a significant amount of time to apply for probate. It is commonly accepted that the executor should commence the probate application within 12 months of the deceased’s death. To resolve a situation like this, it is up to the estate’s beneficiaries to apply to the Supreme Court seeking an order that compels the executor to obtain a grant of probate. 

If delays persist, another dispute can arise, involving beneficiaries applying to the Court to remove an executor of the estate because their actions threaten the proper administration of the estate and negatively impact the interests of the beneficiaries. The courts have not defined precisely what circumstances will allow for the removal of an executor. They have, however, determined that the executor’s intention or motive is irrelevant. In cases previously presented to the Court, the Court has ordered the removal of an executor for reasons such as: 

  • The executor goes bankrupt or is convicted of a crime 
  • Causes significant delay or neglects their duties 
  • Does not adequately communicate with beneficiaries 
  • Causes unreasonable conflict with co-executor 

4. Claims for undue influence in Will disputes 

Another common Will dispute is when a close relative or friend accuses the testator of undue influence. A claim for undue influence arises when a person close to the testator unduly influences or pressures the testator to make changes they wouldn’t otherwise make to their Will. This may occur between siblings because of a broken family unit. For example, one son or daughter may pressure their elderly mother or father into changing their Will in a way that favours them, to the detriment of another sibling. 

Claims for undue influence are notoriously difficult to prove, because clearly the testator cannot attest to their motivations for distributing their assets in such a way. Accordingly, the courts must rely on other witnesses to speak about the testator’s wishes and the relationship between the deceased and the person accused of applying undue influence. 

If the claim for undue influence is successful, then the Will in question will be deemed invalid. Therefore, any previous Will can be considered, or intestacy laws will determine how the estate assets are distributed. 

5. Beneficiaries allege unauthorised transaction of the deceased’s assets 

When one family member is given financial power of attorney in the last few years of the deceased’s life or simply put in charge of the deceased’s assets, often after the deceased’s death, another beneficiary may claim that there have been unauthorised transactions made by the person in charge of the deceased’s finances. If the person who was in charge of the deceased’s finances either transferred funds out of the deceased’s bank accounts or sold property belonging to the deceased, it can significantly reduce the value of the estate, thus disadvantaging the other beneficiaries of the estate. For a beneficiary to make such a claim, they must have genuine evidence to suspect that unauthorised activity of assets has taken place. Too often allegations are made without genuine evidence and usually made based on one beneficiary’s negative opinion of the executor or other family relative. 

If evidence exists to suggest that a person has transferred or sold assets without authorisation then a forensic accountant can be engaged to review financial records and determine if a misuse of funds has occurred. 

6. Challenging testamentary capacity of the testator 

Testamentary capacity involves one’s ability to comprehend the obligations of creating a Will and the impact it will have on the beneficiaries after the testator’s death. Testamentary capacity requires a person to be of sound mind at the time of preparing and executing their Will. 

Sometimes a beneficiary or other family member will contest the Will due to a belief that the deceased did not have the mental capacity to understand the consequences of creating the Will.

Similar to a claim for undue influence, if a claim is successful on the grounds of testamentary capacity, then the Will is deemed invalid. Therefore, any previous Will can be considered, or intestacy laws will determine how the estate assets are distributed. 

Enquire about a Will dispute 

If you believe you may have grounds to challenge a Will, think you may find yourself in a Will Dispute, or need to Defend a Will, please do not hesitate to contact the team at Hentys Lawyers today. 

IMPORTANT NOTE: Hentys Lawyers assist clients with drafting wills and powers of attorney and in contesting a will or the distribution of an estate where a deceased estate concerns allegations of undue influence/ elder abuse. However, we do not assist with legal matters of Elder abuse.