Family provision claims

One of the most common forms of estate litigation involves a claim by an eligible person that adequate provision has not been made for their proper maintenance and support.

In Queensland, these claims are governed principally by the Succession Act 1981.

The Court may consider a range of circumstances, including the nature of the relationship between the applicant and the deceased, the applicant’s financial position and needs, the size and nature of the estate, the deceased’s obligations and responsibilities to the applicant and others, and the competing interests of beneficiaries.

A family provision claim is not simply a question of whether someone has received an inheritance. The Court undertakes a broader assessment of the circumstances and the provision that ought to have been made.

Lee Lawyers can advise both potential applicants and executors or beneficiaries defending such claims.

Challenging a will

A dispute may concern whether a document is legally effective as the deceased’s will.

Issues can include:

• whether the will was properly executed;

• whether the deceased had testamentary capacity;

• whether the deceased understood the nature and effect of the will;

• whether the deceased knew and approved its contents;

• whether the will was affected by undue influence;

• whether there was fraud or other improper conduct;

• whether an earlier or later will applies; and

• whether another document may constitute an informal will.

These matters can involve substantial factual and medical evidence, including evidence concerning the deceased’s circumstances, relationships, mental capacity and intentions at the relevant time.

Informal wills and testamentary documents

Not every document expressing a person’s testamentary intentions will necessarily satisfy the formal requirements for a will.

Queensland law provides circumstances in which the Court may recognise an informal document as a deceased person’s will or testamentary document.

This can give rise to difficult questions where, for example, a person has left handwritten instructions, an unsigned document, an electronic document or other material said to record their final wishes.

The precise circumstances in which such a document may be recognised require careful consideration of the evidence and the applicable succession law.

Executors and estate administration

Executors and administrators have important legal responsibilities in administering an estate.

Disputes may arise concerning:

• the collection and protection of estate assets;

• payment of debts and liabilities;

• the sale or transfer of estate property;

• distribution of assets;

• accounting for estate transactions;

• communication with beneficiaries;

• delays in administration;

• alleged conflicts of interest;

• alleged breaches of duty; and

• whether an executor or administrator should continue to act.

Where an estate has become contentious, early legal advice can help identify the issues and establish an appropriate process for administration.

Disputes between beneficiaries

Beneficiaries may disagree about the interpretation or implementation of a will, the treatment of particular assets or the conduct of an executor.

In some matters, the dispute can be resolved by agreement between the interested parties. In others, an application to the Court may be necessary.

A practical assessment of the likely costs, risks and benefits of litigation is an important part of advising on an estate dispute.

Property and asset disputes

Not every dispute concerning a deceased person’s assets is determined solely by the terms of the will.

Questions can arise concerning:

• jointly owned property;

• property said to have been held on trust;

• loans or advances made during the deceased’s lifetime;

• ownership of businesses or company interests;

• superannuation and insurance benefits;

• gifts made before death;

• family arrangements;

• resulting or constructive trusts; and

• equitable claims arising from promises or representations.

These matters can require consideration of succession law together with property, equity, trusts and commercial law.

International and interstate estates

Estate disputes can become particularly complex where the deceased lived overseas, owned property in another jurisdiction, or had family members or beneficiaries in different countries.

Different succession laws may apply to different assets, and questions of jurisdiction and recognition can arise.

Lee Lawyers can assist in identifying the Queensland legal issues and, where appropriate, working with lawyers in other jurisdictions.

Mediation and negotiated resolution

Estate disputes often involve family relationships that parties may wish to preserve.

For that reason, negotiation and mediation can be particularly valuable.

A successful resolution may avoid the delay, expense and uncertainty associated with contested court proceedings while providing a practical outcome for the estate and its beneficiaries.

Lee Lawyers has substantial experience in civil litigation and mediation and can advise on whether an estate dispute is suitable for negotiated resolution.

Where agreement cannot be reached, we can advise on and conduct appropriate court proceedings.

Acting for executors and beneficiaries

Estate litigation can involve competing interests.

Lee Lawyers acts for parties on different sides of estate disputes, including:

Executors and administrators
Advising on their obligations, defending claims and dealing with contentious beneficiaries.

Beneficiaries
Advising on rights under a will, estate administration and disputes concerning the distribution of estate assets.

Family provision applicants
Advising eligible applicants about potential claims and the relevant evidence.

Other interested parties
Advising where ownership, trust, testamentary or equitable issues affect an estate.

Our role is to provide independent legal advice based upon the client’s particular circumstances and objectives.