August 2007

"Winning" Estate Disputes -whilst saving family relationships

The need for testamentary capacity

Regrettably, disputes over family estates are becoming increasingly common. These can arise in circumstances where a parent dies either leaving no Will or an ill-considered Will. Adult children, who are heavily indebted, expecting “their” inheritance, can exacerbate the situation.

An inherent problem with estate claims is that they can damage or destroy family relationships. The knack in pursuing an estate claim is to ensure that family ties remain intact. This can be achieved by negotiating at the earliest possible stage, avoid seeking an unreasonable share of the estate and settling amicably.

Family Circumstances

Circumstances that tend to lead to disputes are:

  • Parent dying without a Will;
  • Parent having a “home-made” Will;
  • Parent having children from more than one relationship;
  • Parent providing for an unequal division of assets without an adequate explanation;
  • One child of the deceased who tends to dominate; and
  • Controlling spouse/ partner of a child of the deceased.

Court Proceedings

The skill with estate disputes is to avoid issuing Court proceedings. Once Court proceedings are issued there can be lengthy delays, the legal costs will significantly increase and, frequently, family relationships are wrecked. Claimants must appreciate that a sense of unfairness will not be sufficient, in itself, to succeed in Court.


  • A claimant must be an immediate family member of the deceased (which includes a de-facto partner and grandchildren); and
  • The deceased had to have a “moral duty” towards the claimant which the Will did not adequately satisfy ( in other words, the deceased needed to “be just before being generous”).

Certainly, a claimant can use the prospect of Court proceedings as leverage to convince family members to settle. But, a claimant needs to be aware of the limited time frame in which to issue proceedings.


A claimant’s focus should be on:

  • Maximising their share of the estate;
  • Retaining good family relationships; and
  • Most of all, being reasonable (because the Court tends to punish unreasonableness).

Such potential claimants need to seek legal advice at as earlier stage as possible. We have the expertise in this complicated area of the law within our firm, but, obviously, we can not act for all members of the same family in such a dispute.