Estate Litigation

We know that not all estate matters are straightforward. A Will dispute can arise for a variety of reasons. At Chamberlains we have specialist lawyers who have extensive experience contesting Wills, as well as defending estates, to ensure you are provided with effective and personalised estate litigation advice.

Testimonials

I cannot thank you enough for your professional and empathetic approach making it as smooth and seamless as possible during the mediation. While this has been one of the most daunting experiences, one I never wish to go through again, I feel the end is near and the future for myself and the boys looks all the more stable and healthier thanks to all of you! You have all dealt with my ups and downs during the process and the level of detail, care and kindness from you all is appreciated more than I can express.

Family Law Client

You have given me the chance of a fresh start that I didn’t think I’d ever have again to be honest. You literally changed my life and I’ll never be able to thank you enough. Just wanted to let you know how much I sincerely appreciate all your help and hard work.

Compensation Client

The team at Chamberlains made buying a property extremely easy, I never once experienced the stress people talk about during the exchange/settlement periods of their property. Definitely recommend!

Conveyancing Client

The debt recovery team went above and beyond when our business was owed money. Would use again for sure!

Insurance Client

We picked the most highly specialised and talented lawyers.

At Chamberlains we’re with you when it comes to an estate 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, capable and friendly staff who are here to help at every step through this difficult time.

We have Will dispute 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.

Contact us today to begin the process of resolving your estate litigation matter, so that you are able to focus on what’s important.

Process - what happens next?

Initial case evaluation

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

Consultation

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

Case management

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

Services

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, however examples can include spouses or de facto partners, children and dependent grandchildren.

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.

Invalid Will Claims

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 severe 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.

Other Equitable Claims

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.

Claims against Executors, Attorneys, Financial Managers or Guardians

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) 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.

Contact us.

Sydney CBD
Sydney Norwest
Canberra
Perth
Newcastle

P +61 2 9264 9111
E hello@chamberlains.com.au