When someone dies their will, if they’ve made one, is designed to provide certainty to the deceased’s family about how his or her assets and belongings are to be distributed among them.
Unfortunately, in life, even the best-laid plans can go awry. Sometimes it’s the very existence of a will which results in problems, with disputes about a deceased person’s estate mostly caused by disagreements among family members (the most common beneficiaries of the will).
The five most common disputes when it comes to estates and wills – and how to address them – are outlined below.
Problem 1: The executor of the will is taking too long
A key role for the executor of a will – the person the deceased nominated to manage and distribute the assets of their estate – is to obtain a Grant of Probate, which allows them to go ahead and fulfil their main duty. There’s no strict legal timeframe on how long this should take though it’s generally accepted the executor has up to a year to make the application for Probate and proceed with the administration of the Estate. When executors delay this process, for whatever reason, it’s understandable beneficiaries of the will begin to get impatient.
Solution: If the executor delays unreasonably, those named as beneficiaries in the will can apply to the Supreme Court for it to hand down a deadline by which the executor needs to administer the Estate and in extreme cases remove the Executor and appoint a replacement.
Problem 2: Beneficiaries disagree on what should happen to the estate property and/or their share of the estate
A common area of conflict among family beneficiaries is the future of the property – usually the family home – included in the estate. While the terms of the deceased’s will usually detail what they wished to happen to the property after their death, sometimes it’s left up to the beneficiaries or is vague and uncertain. This latter occurrence will frequently result in disagreement between those who want to sell the property and put the proceeds to other uses, and those members of the family who want to keep it in family hands.
Solution: Those beneficiaries who want to keep the house can buy out the interest of the others, utilising an expert valuer to work out the appropriate amount to be paid and then the arrangement can be formalized in a deed of settlement.
Another common area of contention among beneficiaries arises when one or more of them do not believe their inheritance in the deceased’s will takes into account their ‘legitimate needs’.
Sometimes there are also other people who may have rights of claim on the estate. This is the case if they ‘reasonably anticipated’ they would benefit from the estate because of things the will-maker said to them during his or her lifetime. For example, if the person relied upon the deceased’s remarks (i.e. made investment decisions, etc, based on their expectation of a benefit from the estate) and this reliance was known to the deceased, it’s possible a court will find that the testator (the deceased) should have provided for the person in their will.
Solution: Certain classes of people with a relationship to the deceased (usually close family members) may be able to challenge the will and ask a court to redraw its terms by showing that the deceased failed to adequately allow for their needs.
Problem 3: Beneficiaries believe there have been unauthorized transfers of assets.
Another common problem arises when beneficiaries of an estate believe that the executor of the will has made suspicious and unauthorised transfers from the estate during the lifetime of the deceased, thereby reducing its overall value. This sometimes happens when one child or a close family member of the deceased is given power of attorney and named executor of the will, giving them power to manage the money in the estate both before and after the will-maker’s death.
Solution: Beneficiaries who suspect such activity will often employ forensic accountants to review financial records and work out whether any assets were improperly transferred from the estate. If discovered, these assets can potentially be restored to the estate and the executor removed from that role. Alternatively the executor may be allowed to continue in the roll on the understanding that he or she will receive a lesser share of the estate.
Problem 4: The executor or a beneficiary is accused of undue influence
It’s a fact of life that in many families, some members are closer than others. As people get older, for instance, they may more heavily rely on an adult child who lives close to them compared with other of their children who live interstate. This situation can often give rise to accusations that the ‘closer’ child unduly influenced the deceased in regards to their estate planning, making suggestions on what and who should and should not be included in their will, for example. It should be remembered that not all “influence” is “undue”.
Solution: If undue influence or coercion has occurred and – importantly – can be proved, other beneficiaries have grounds to challenge the validity of the will. If the will is adjudged as invalid, an earlier will may instead come into effect or if there is no earlier will the deceased will be regarded as ‘intestate’ (without a will) and state government legislation on intestacy will be employed to divide the estate.
Problem 5: Beneficiaries find other problems with the validity of the will
While the emergence of DIY will kits may help people save money, they often result in wills that can be challenged by beneficiaries as being not legally valid and enforceable. Problems can range from a lack of clarity and precision used by the deceased to express their wishes, to a failure to have the document properly witnessed.
Solution: A court can make a decision on whether an informal or technically flawed will should be accepted and Probate granted but this problem is more simply avoided by consulting a law firm experienced in estate planning and wills. While it may cost a little more than a DIY will kit, it will cost a lot less than the eventual problems that can emerge from the making of an invalid will.
In fact, all of the problems above can likely be avoided by taking advice and guidance from legal professionals with long experience in estate planning. Harris Lieberman Solicitors are widely experienced in estates and wills and can help you if any of the issues raised in this article apply to your circumstances. Contact us today on (02) 6051 5100.