In an ideal world, no one would ever have to deal with an inheritance dispute. Unfortunately, in today’s modern society, they are growing in number.
The good news is, we’re here to help.
Assuming you’ve already made efforts to resolve matters through sensible negotiation or structured sessions, whether during the estate planning phase or after a death once the landscape is known, and the dispute is still alive, the matter moves from the front end (planning phase) to the back end (active dispute phase).
Just as trusted advisors play a crucial role at the front end, they’re just as vital at the back. A large part of our daily practice is focused on back end work, resolving inheritance disputes, Will challenges and estate litigation, and working to engineer solutions to disputed wealth transfers.
We act for clients on both sides of the fence, helping those who have been improperly left out of a Will or inadequately provided for, and also helping those who need to defend Wills from attack.
Our role is to help square the ledger, seeing the right assets distributed to the right people for the right reasons.
An important piece of knowledge is understanding what the dispute process actually looks like. Armed with this information, you can often assist clients early with reasons to try and avoid litigation where possible.
Contesting or challenging a Will
If you feel you have been, or are likely to be, improperly left out of a Will or an estate, or left with an inadequate or improper portion, the first step is always a conversation.
We take an objective look at the situation and can usually form a view fairly quickly on whether there is a valid claim or a valid defence. We work hard to remove the emotion and stress, stepping through the specific circumstances which, although often familiar, are always unique.
We map out best and worst-case scenarios, weighing up both commercially and emotionally, the likelihood of success or failure.
Challenging a Will carries a high likelihood of success. Recent Australian research found that around three-quarters of claims that go to trial result in a change to how the Will originally distributed assets. And those are only the trials, the tip of the iceberg. The overwhelming majority of claims resolve earlier, often resulting in at least some additional provision, however modest.
To assess a claim’s strength, we analyse three points:
- the claimant’s financial landscape,
- the financial circumstances of other beneficiaries or potential beneficiaries,
- and the overall value of the estate.
We then apply this through the lens of any other relevant factors, such as special needs, broken promises, or conduct to be either rewarded or penalised.
At this stage, we also outline the strategy, expected timeline, likely costs, and anticipated range of outcomes. This is a frank and honest assessment of the strengths and weaknesses of both your position and, as far as can be determined, the opposition’s.
Much of this comes down to strategy. Knowing how and when to act for maximum effect is key. Our deep understanding of current case law and Court attitudes informs our strategic approach to each matter.
Initiating the process
We always attempt negotiations first to avoid the inevitable cost and emotional toll of litigation. If that’s unsuccessful, a claim is filed in the Supreme Court under the Family Provision Act.
Proceedings begin with a Writ of Summons and an affidavit that sets out the claimant’s evidence. All beneficiaries whose share might be affected are joined as co-defendants.
Strategic judgment is crucial here. For instance, there’s no benefit in dragging in a charity as a co-defendant, with all the cost and complication, if they’re only receiving a $2,000 gift. But if the charity is a main beneficiary, they’re in the firing line.
The initial affidavit must be sharp and focused. Too many are unnecessarily long, expensive to produce, and too emotionally charged, inflaming already-tense family dynamics.
Once all parties are served and appearances have been filed (a notice to defend, not a physical appearance), the Court arranges a case management conference. This is a Court-led session where the lawyers and Court work together to progress the matter toward mediation.
Unlike in commercial claims, in family provision matters no defence is filed prior to mediation. This means that at the time of mediation, only the claimant’s affidavit is on the record. This is deliberate. The Court knows that if both sides set out their positions early, they often entrench them. Without a formal defence, parties are more open to resolution.
Mediation and resolution
Mediation is held in the Supreme Court and overseen by a Registrar, a senior lawyer and judicial officer. The goal is always to achieve a practical and sensible resolution.
The Court strongly encourages settlement, reminding parties that avoiding trial saves relationships, money, time, and stress. The success rate at mediation is very high.
However, some matters inevitably proceed to trial, particularly where millions of dollars are at stake or where the dispute is complex.
If a trial proceeds, the judge hands down a written decision, often months later. Appeals can follow but are rare, and they’re limited to legal errors rather than a full rehearing.
Defending an inheritance from challenge
If you suspect a claim may be made, get legal advice early. Acting quickly can drive a successful resolution and avoid critical mistakes. There are also important discussions to be had about which estate assets should or should not be touched pending the claim, and what actions Executors should or should not take.
Defending a Will shares many of the same analytical steps as challenging one. But unique elements arise. For example, assessing whether the claimant’s position is emotionally charged and spurious.
It’s not unusual for defendants to receive an affidavit that, in their view, contains outright fabrications. Sorting through this is essential early on.
Defending an estate can be incredibly stressful, especially for someone still grieving. The right strategies, put in place early, can bring resolution with far less trauma, both emotionally and commercially.
One of the lesser-known burdens is the emotional toll. Claims often arise unexpectedly or from hidden relationships, such as a child from another relationship or a secret de facto. These can be particularly confronting and destabilising. Support and careful guidance early in the process are vital.
It’s important to remember, matters can be settled at any time, even on the courthouse steps. Many disputes resolve when faced with surprise evidence that shifts the strength of the case. We aim to reach resolution quickly and effectively when doing so makes financial and emotional sense.
What if you are the Executor?
It’s common for professional advisors to be named as Executor. It’s also common for Executors to be caught off guard when a claim arises.
If a claim is likely before probate is granted, you should consider whether to act as Executor at all, especially if you’re also a beneficiary. Wearing both hats can create significant conflicts of interest.
As a beneficiary, your goal is to protect your share. As an Executor, you must remain neutral and administer the estate fairly and efficiently. This can be difficult when duties conflict.
In such cases, two sets of lawyers may be required, one for the Executor and one for the beneficiary. While this increases costs, it may be necessary to avoid breaching your duties or being accused of wrongdoing.
The Executor’s role is to be the meat in the sandwich. They don’t take sides. Their responsibility is to maintain the estate, present its assets clearly and transparently, and assist the Court impartially.
At mediation, the Executor plays a modest role. Their task is to provide an up-to-date statement of the estate’s assets and liabilities so everyone knows what’s at stake.
Importantly, in WA an Executor is a neutral party, not a representative of the deceased. This differs from states like NSW and Victoria where Executors often defend the Will as the voice of the deceased. Doing so in WA risks liability for legal costs or claims against the Executor personally.
Ultimately, once a settlement or judgment is reached, it’s the Executor’s job to carry it out. This involves selling or transferring assets, paying monies, and ensuring compliance with the agreement or order.
Final thoughts
Being an Executor is never easy, even in simple estates. In a dispute, the risks and complexity only increase. Executors must act with caution, neutrality, and a clear understanding of their responsibilities.
Whether you’re a claimant, a defendant, or an Executor, reach out to our team of expert lawyers who can offer early guidance, thoughtful strategy, and experienced support that makes all the difference.
