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26 September, 2014 | Carolyn Ranson
What’s new is the number of reconstituted or blended families, which means the children and relatives from a first marriage often feel left out when the estate is left wholly or mainly to the spouse and children of a second marriage.
The Family Protection Act gives quite a lot of people the right to contest a will: children and step children, grandchildren, parents and grandparents who are being maintained by the deceased.
The courts are reluctant to change the outcome of a will – except in very limited circumstances. What’s new is that people are more willing to have a go.
The other reason for disputes is when a person dies without making a will, their estate may end up going to a person they would never have intended should benefit from their estate.
When a person dies, the executors (typically a lawyer and a senior family member) will apply in the High Court for a grant of probate – that’s permission to wind up the estate in accordance with the provisions of the will. That application is a matter of public record.
To challenge a will, the disputing party will write to the executor and state their grievance. If they don’t get a satisfactory reply, they can then file a claim in court and serve this on the executor and all the beneficiaries named in the will.
Often an executor will also be a beneficiary. That makes things more complicated, because that person has to separate their own interests from the interests of the estate. In practice that means they may have to engage a separate set of lawyers.
If we are involved with one of the parties, we will always suggest that we try and talk out the dispute with the other parties and reach a settlement. That can include private mediation.
If that doesn’t work, the court will often order what’s called a judicial settlement conference, where the judge will try and mediate a settlement.
As lawyers we are always conscious of the cost of litigation. Disputes over estates can be very bitter and ugly; all sorts of old family grievances come to light. Often this baggage can blind people to what is in their best interests.
As a rule of thumb, if we think that there is even a slight chance that a party disputing the provision of a will can win their case, we are inclined to recommend a settlement.
Settling disputes should be a commercial decision based on a cost benefit analysis, but often that is not the case, as emotions override personal judgement.
If an estate is worth $300 000, why spend $40 000 to defend a position when the matter can be settled with a payment of $20 000?
The size of the estate is never going to get bigger. It will only get smaller the more money spent both prosecuting and defending the claim.
If the parties do go into mediation or simply settle the matter around the table, I can see the relief on people’s faces. It’s like a weight has been lifted off their shoulders.
Things can be done before death to prevent disputes afterwards. These include writing the will properly and getting advice if you wish to exclude someone from the will.
Assets can also be put into a trust, which then can’t be attacked by an aggrieved party in the same way a will can.
Advising parties in advance of the provisions of the will and setting out your reasons in writing can help, but where there is a bitter estrangement, this may not work.
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