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    We picked the most highly specialised and talented lawyers

    At Chamberlains we’re with you when it comes to an estate or Will dispute. We understand that estate litigation can be stressful, especially when you are also grieving the loss of a loved one. We have a range of professional and capable staff who are here to help at every step through this difficult time.

    Angela
    Backhouse

    Director

    Harold O’Brien

    Director

    Marissa Dimarco

    Director

    Our process

    01Initial case evaluation

    After an initial briefing of your matter, we will provide you with a preliminary quote.

    02Consultation

    We look into all aspects of your matter and suggest the most viable path for you.

    03Case management

    The Chamberlains team will work tirelessly to reach the best possible outcome for you.

    Our services

    01 Family Provision Claims

    If you have been left out of a Will, or have been given a smaller provision than what you thought, you may be able to challenge the Will by what is known as a family provision claim.

    The basis for this claim is that the deceased Will-maker has not made adequate and proper provision for a person (the applicant), and so has failed in their moral obligation to provide for the applicant. For example, a de facto partner of the deceased of 40 years may have been left out a Will entirely, or only given a right of residence in the deceased’s home.

    Only certain people, called “eligible persons”, can make these sorts of claims. Determining who is eligible will depend on the law of the State of Territory where the claim is considered (see e.g. Sections 57 and 59 of the Succession Act 2006 for NSW, Sections 7 and 8 of the Family Provision Act 1969 for the ACT, Section 91, Administration and Probate Act 1958 for Victoria and QLD: Sections 40, 40A and 41, Succession Act 1981 for Queensland), however these persons can include spouses or de facto partners, children and dependent grandchildren. That is, in general terms, the classes of persons eligible to make a claim can be summarised as follows –

    • a spouse, former spouse, de facto spouse, partner, domestic partner (however described, or defined); and
    • persons with whom the deceased shared a domestic or close personal relationship (however described, or defined); and
    • past or present dependants (including, but not limited to, children and grandchildren).

    Most commonly these claims involve a child challenging a Will or partner contesting a Will.

    Different factors are also considered for establishing the moral obligation of the deceased to provide for the applicant, including any estrangement between the deceased and the applicant, together with the applicant’s financial circumstances and future needs. A list of common factors considered by the Court include –

    • the relationship between the deceased and the applicant;
    • the nature and extent of any obligations or responsibilities owed to the applicant;
    • the nature of the estate;
    • the financial circumstances of the applicant and other beneficiaries;
    • any physical, intellectual or mental disabilities of the applicant;
    • any contribution the applicant has made to the deceased’s estate;
    • provision that has been made for the applicant by the deceased whether during their lifetime or in their estate;
    • evidence of the testamentary intentions of the deceased;
    • the character and conduct of the applicant; and
    • any other factors the court considers relevant.
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    Sometimes there are suspicious circumstances around the making of a Will, which can result in a contested Will. The grounds for an invalid Will include that:

    Sometimes there are suspicious circumstances around the making of a Will, which can result in a contested Will. The grounds for an invalid Will include that –

    • a Will-maker did not know what they were signing.

    This argument concerns knowledge and approval of the deceased to make the Will. If the Will-maker is given false or misleading information, it could also result in an argument of fraud.

    • a Will-maker did not have capacity to make a Will.

    For example, the Will-maker suffered from later stage dementia at the time the Will was signed. This is known as a challenge on the basis that the Will-maker lacked testamentary capacity.

    • someone exerted undue influence or pressure on a Will-maker to make a Will.

    This could be an unconscionable conduct or undue influence matter. If the matter involved threats, violence or force, it may be that the Will was signed under duress

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    Other kinds of claims are available to contest Wills where certain principles of justice and fairness (known as “equity”) are invoked. This can happen where promises or agreements are made with a deceased person that have not been accounted for by the deceased or reflected in the Will. These claims include –

    • Resulting or Constructive Trust Claims; and
    • Equitable Estoppel Claims.

    Resulting or constructive trusts arise where a person has an equitable interest in property owned by another person. Sometimes a common intention is held and promises are made about this between two people. Equitable estoppel works in a similar way. Estoppel aims to “stop” someone from acting (or failing to act) in a certain way, such as reneging on a promise that is relied on by another person and acted upon to their detriment or loss.

    An example where these claims could arise is where an adult child makes significant contributions to the parent’s home on the parent’s assurance they will gift their home to that child in their Will. When the parents dies, it turns out the property is to be gifted to someone else, or split up between all the children.

    This situation can also arise outside of deceased estates. For example, a parent pays large sums of money to an adult child because of a promise the parent can live at the child’s property in a granny flat for the rest of their life, but the relationship has broken down and the child wants the parent to vacate.

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    Executors are appointed under a Will to deal with your estate when you die. Sometimes the Executor or Executors that are appointed act inappropriately. Claims can be made against Executors to rectify their wrongdoing or stop them from acting, depending on the circumstances, which can form part of Will disputes.

    This is similarly the case for Attorneys and Guardians who are appointed under Power of Attorney and Guardianship documents. Enduring Attorneys and Guardians act whilst the person who made the document (known as the appointor or principal) is alive, but may have lost capacity to make decisions for themselves. For example, the appointor may have dementia, be receiving care and living in an aged care facility.

    Financial Managers and Guardians can also be appointed by the Supreme Courts and the Civil and Administrative Tribunals when a person is not able to appoint their own Attorney and Guardian, for example they may have an intellectual disability or have lost capacity.

    Executors, Attorneys, Financial Managers and Guardians occupy what are known as fiduciary positions. Fiduciary relationships are special relationships where the fiduciary must act in the best interests of another person or people and not for their own benefit. If they breach their duties, they can be held personally liable. An example of a claim that may arises in this context is where the fiduciary has syphoned off money for themselves, to the detriment of the beneficiaries of a deceased estate or to the appointor whilst they are living.

    A common type of claim in these cases are made by disgruntled beneficiaries, such as where a beneficiary was meant to receive a particular gift of property under a Will and that property has been sold or otherwise dealt with by a Financial Manager or Attorney. Our Will dispute and probate lawyers also specialise in elder law, and can assist with these matters.

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    At Chamberlains we’re with you when it comes to an estate or Will dispute. We understand that estate litigation can be stressful, especially when you are also grieving the loss of a loved one. We have a range of professional and capable staff who are here to help at every step through this difficult time.

    We have Will dispute and deceased estate lawyers who are able to assist you with a variety of issues, no matter your needs. We appreciate that each contested Will and estate matter is unique, and we approach each matter on a case by case basis to provide you with tailored advice. With offices in various locations, we can assist you no matter where you are based.

    Contact us today to speak to our contested Wills and probate lawyers to begin the process of resolving your Will dispute matter, so that you are able to focus on what’s important.

    Call us at +61 2 9264 9111
    Email us at hello@chamberlains.com.au

     

    Contact our offices:

     

     

    Related Practice Areas

    As part of a full-service firm, we can also draw on the legal and industry knowledge of our expert Chamberlain’s colleagues who represent almost every area of legal practice, not only will and estate lawyers, including:

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    FAQ

    01What are the most common Will disputes?

    The most common contested Will matters we as Will dispute lawyers (also known as contested Wills and probate lawyers) see are family provision claims. This is typically where a child challenges a Will saying they have not been given adequate and proper provision (see further information on family provision Will disputes above). However, deceased estate lawyers deal with all sorts of issues, and we can assist no matter what estate contest or Will dispute arises.

    Estrangement (having no relationship with a person for a period of time, e.g. reduced or no contact for many years) is a common issue in Will dispute matters. The Courts have described estrangement as a condition created by the conduct of both parties and is relevant to the Court’s consideration in making an order for provision (see Kemperman v Antonenas [2021] NSWSC 1555). Estrangement does not require the Court to assign ‘blame’, but the circumstances must be examined. This is most common in parent-child relationships where a break down occurred potentially many years ago and the parent has made little or no provision for the child in their Will. We have acted on both sides of these Will contest claims and so appreciate the various issues that need to be considered for you.

    A poor relationship between family members is another issue that commonly arises in these contested Will matters. For example, in the parent-child relationship, the Court has indicated that a ‘wise and just’ parent (this is a common theme considered by the Court in contesting Will cases) must account for their child being a separate individual who is entitled to make their way in the world. This means a degree of friction between the parent and child is not unexpected and is, indeed, quite common. A will maker in such circumstances must “not allow such disharmony or disappointment to blind [them] to the needs of [their] child for maintenance, education or advancement in life” (See Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at [540]).

    Whilst there are certainly good reasons to exclude or reduce provision for certain persons (e.g. where abuse has occurred, such as domestic violence) some reasoning is more likely to be ignored by the Courts. Examples include the following –

    • The Court has ignored a parent’s disapproval of their child’s choice of marriage as a reason for reduced provision to the child (See Weyman v Erdi (1992) ACL Rep 395 NSW 38).
    • The Court has ignored a parent’s disapproval of their same-sex relationship as a reason for reduced provision to the child (Kharpoutlian v Manoukian [2009] NSWSC 251)

    A specialist Will dispute lawyer is best placed to deal with estate disputes. Our deceased estate lawyers work across all areas of estates, from estate planning (i.e. drafting Wills) and estate administration (i.e. probate) to Will disputes. This means our Will contest lawyers have experience on all the different kinds of issues that arise with estates and can provide a wholistic service. Our Will inheritance dispute lawyers can provide you with quality, expert services and will always aim to reach the best outcome for you.

    Estate disputes are becoming more and more common, partially due to the aging population, increased intergenerational wealth, and the rise of blended families. When this happens, people often wonder how to settle family estate disputes and whether a lawyer is needed.

    Whilst you are not, strictly speaking, legally required to have a lawyer to deal with a Will dispute (that is, you can act as an unrepresented litigant), it is strongly recommended that you obtain legal advice in these matters. Further, you should seek legal assistance from a specialist in the area – namely, a Will dispute lawyer. Our Will contest lawyers can provide you with quality, expert services and will always aim to reach the best outcome for you.

    If you do not obtain legal advice and have a specialist Will dispute lawyer assist you with your case, there are many things that could go wrong. For example, unrepresented litigants may miss key procedural steps in the legal proceedings, prepare evidence contrary to the legal evidence rules, and generally advocate their position in a way that does not reach the best, desired outcome. If you receive proper advice, you will be better informed of your legal position and the likely outcomes of the case. Knowledge is power, and we are here to help you with your Will inheritance dispute.

    Our Will dispute lawyers can help you navigate this difficult area, provide you with targeted contested Will advice, and work to reach a settlement that is appropriate for the particular circumstances of your case.

    There are different categories of person who can contest a Will by a family provision claim against a deceased estate. This will depend on the jurisdiction (that is the State of Territory) that applies to the particular Will dispute case. Some examples are set out below.
    The persons considered eligible under section 57 of the Succession Act 2006 (NSW) to make a claim against your estate generally include:

    • A spouse or former spouse;
    • A person with whom you are in a de-facto relationship with at the time of your death;
    • Your child;
    • A person who is dependant upon you and was either a member of your household or a grandchild; and
    • A person with which you have a close personal relationship.

    The persons considered eligible under section 7 of the Family Provision Act 1969 (ACT) to make a claim against your estate at your death generally include:

    • A spouse or former spouse;
    • A person with whom you are in a de-facto relationship with at the time of your death;
    • A person with whom you are in a domestic relationship with at the time of your death;
    • Your child; and
    • A person, such as a stepchild, grandchild or parent, who is dependent upon you immediately before your death.

    The persons considered eligible under section 41 of the Succession Act 1981 (QLD) to make a claim against your estate generally include:

    • A spouse or financially dependent former spouse;
    • Your child; and
    • A dependant.

    If you are unsure whether you are an eligible person, please reach out to our specialist Will dispute lawyers. We are here to work with you and provide advice tailored to you.

    A Will is subject to legal confidentiality and a copy of a Will cannot be provided by a lawyer to anyone other than the Will-maker before their death. There are legal exceptions (e.g. if a Court requires / orders it, or if an Enduring Power of Attorney confers authority for an Attorney to inspect the Will), and this will usually occur in the context of issues arising with Attorneys or Financial managers making decisions about property owned by the Will-maker.

    After a person dies, legal confidentially continues and decisions about this will be made by the legal personal representative (i.e. an executor or administrator). However, certain persons will be entitled to inspect a Will. This depends on the applicable jurisdiction (i.e. the State or Territory that applies to the particular deceased estate).

    In New South Wales, the persons who can request a copy of a Will is set out in section 54(2) of the Succession Act 2006 (NSW), which states that:

    A person who has possession or control of a will of a deceased person must allow any one or more of the following persons to inspect or be given copies of the will (at their own expense) –

    (a) any person named or referred to in the will, whether as a beneficiary or not,
    (b) any person named or referred to in an earlier will as a beneficiary of the deceased person,
    (c) the surviving spouse, de facto partner or issue of the deceased person,
    (d) a parent or guardian of the deceased person,
    (e) any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,
    (f) any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
    (g) any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
    (h) any person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person,
    (i) any attorney under an enduring power of attorney made by the deceased person,
    (j) any person belonging to a class of persons prescribed by the regulations.

    Whilst you are not, strictly speaking, legally required to have a deceased estate lawyer to deal with a probate or administration matter, executors and administrators (legal representatives of an estate) can face personal liability and be held responsible in certain circumstances where things are not done properly. An example of this is where tax and other liabilities are not appropriately dealt with. Obtaining legal advice becomes even more important where a Will dispute arises.

    Our deceased estate lawyers work across all areas of estates, from estate planning (i.e. drafting Wills) and estate administration (i.e. probate) to Will inheritance disputes. This means our Will contest lawyers have experience on all the different kinds of issues that arise with estates and can provide a wholistic service. Our contested Wills and probate lawyers can provide you with quality, expert advice to work with you during these stressful matters.

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