Unfortunately, things do not always run smoothly when it comes to wills and deceased estates. Disputes sometimes arise and must be resolved before the administration of the estate can be completed.

If you find yourself requiring advice in relation to a dispute concerning a will or deceased estate, our wills & estates specialists can help you through the sometimes uncertain territory of dispute resolution, providing you with quality advice and representation.

Types of disputes regarding wills and estates

The types of disputes which arise regarding wills and deceased estates include:

  • family provision applications
  • disputes about testamentary capacity
  • undue influence or suspicious circumstances surrounding the making of a will
  • breaches of agreements for contractual wills or mutual wills
  • disputes regarding the interpretation of wills
  • rectification of wills
  • informal wills
  • breaches of duty by executors and administrators
  • breaches of duty by attorneys acting under enduring powers of attorney

Family provision applications

A family provision application involves a person within a defined relationship to a deceased person bringing an application to the court seeking a share of the deceased person’s estate, or a larger share of the estate than has been left under the will, on the basis that the deceased person has failed to make adequate provision for his or her proper maintenance and support.

Disputes regarding testamentary capacity

In order to be able to make a valid will, a person must possess what is known as testamentary capacity. If a person lacks testamentary capacity, then he or she is unable to make a valid will.

Disputes sometimes arise as to whether a deceased person had the testamentary capacity required to make a valid will.

Disputes of this nature are becoming more common as people are living longer and the incidence of degenerative cognitive disorders such as dementia and Alzheimer’s disease is increasing.

Undue influence, suspicious circumstances and lack of knowledge and approval in relation to the making of a will

Disputes also arise as to the validity of wills where there is evidence that:

  • a will was made as a result of undue influence being exerted over the deceased person
  • there are suspicious circumstances surrounding the making of a will
  • a deceased person did not know and approve the contents of a will

Breach of agreements for contractual wills or mutual wills

People sometimes enter into agreements as to how they will dispose of their estates in their wills.

Unfortunately, people do not always adhere to the terms of such agreements, and as a result disputes sometimes arise.

Disputes regarding the interpretation of wills

It is sometimes unclear what the wording of a will means. The existence of several possible interpretations can give rise to disagreements about which one is correct. Where such disputes arise, it is often necessary to seek the assistance of a court to determine which particular interpretation is the correct one.

Rectification of wills

Despite everyone’s best efforts, mistakes sometimes occur in the preparation of a will. This can result in disputes as to whether the will fails to carry out the will-maker’s intentions.

In these circumstances, it may be necessary to apply to the court to have the will rectified so that it gives effect to the will-maker’s instructions.

Informal wills

Sometimes a document is not executed in accordance with the formal requirements for a valid will. This can result in disputes as to whether the document should be recognised as a will, or not.

In these circumstances, it is often necessary to seek a declaration from the court as to whether the document forms a will. The court has the ability to declare that a document which has not been executed in accordance with the formal requirements as a valid will if it is satisfied that the deceased person intended the document to form their will.

Breaches of duty by executors and administrators

Disagreements sometimes arise as to whether an estate is being properly administered, and whether executors or administrators have complied with their duties.

Where such disputes arise, it may be necessary for an executor or administrator of an estate to be removed, or to seek an order that the executor or administrator account for a breach of his or her duties.

Breaches of duty by attorneys

Disputes also arise as to whether attorneys acting for a person under an enduring power of attorney have complied with their duties.

Such disputes can arise while the donor of the enduring power of attorney is still alive, or following his or her death.

Where such disputes occur, attorneys can be held to account for breaching their duties.