Practice Area - Contested Estates

Contested Estates

At BlackBay Lawyers, we prioritise securing your future and providing for your loved ones. Our expert team across Australia delivers tailored estate planning solutions, ensuring your assets are distributed as you wish.

We offer guidance on drafting wills, establishing powers of attorney, and creating testamentary trusts, with a focus on clarity and precision. Whether you’re starting or updating an estate plan, our approach centres on your goals and your family’s future needs.

CONTESTED ESTATES CONSULTATION

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Contested Estates Services

We provide expert support in contested estates, focusing on safeguarding your rights and ensuring a fair resolution. From challenging or defending wills to handling family provision claims, our approach is tailored to protect your interests and uphold the intentions of the estate. Whether navigating a dispute or seeking clarity on your entitlements, we work with you to secure outcomes that align with your goals and respect your family's future needs.

Areas of Expertise - Contested Estates

Executor and Trustee Disputes

Executors and trustees play a vital role in administering the deceased’s estate, but disputes can arise if beneficiaries or other parties feel that they have not fulfilled their duties. Common causes of executor and trustee disputes include:

Allegations of Mismanagement or Breach of Duty: Executors and trustees have a fiduciary duty to manage the estate with honesty, integrity, and impartiality. Allegations of mismanagement or breach of duty may arise if beneficiaries believe that assets are being mishandled or if the estate is not being distributed according to the will’s terms.
Conflict of Interest: Executors and trustees must act solely in the best interests of the estate’s beneficiaries. Conflicts of interest can arise if the executor or trustee stands to benefit from certain actions or if they are not acting impartially.
Disputes Over Asset Distribution: Executors and trustees are responsible for distributing assets according to the will’s instructions. Disagreements over asset valuation, timing of distribution, or other issues can lead to disputes.
Removal of an Executor or Trustee: In some cases, beneficiaries may seek to remove an executor or trustee if they believe there has been serious misconduct, conflict of interest, or failure to perform duties. Courts will only order removal if there is strong evidence that the executor or trustee’s continued involvement would be detrimental to the estate’s administration.

BlackBay Lawyers assists in resolving executor and trustee disputes, providing support in understanding fiduciary responsibilities, addressing allegations of misconduct, and working towards a resolution that aligns with legal obligations and the best interests of all parties involved.

Get in touch with a Contested Estates Lawyer

Family Provision Claims

Under Australian law, certain family members and dependents have the right to contest a will if they feel they were not adequately provided for. This type of claim, known as a Family Provision Claim or Testator’s Family Maintenance Claim, is available under each state’s Succession Act, with eligibility and criteria varying slightly by jurisdiction.

Who Can Make a Family Provision Claim? Eligible claimants generally include spouses (including de facto and, in some cases, former spouses), children (including biological and adopted children), stepchildren, and certain persons who were financially dependent on the deceased at the time of their death. Some states also allow claims from certain individuals with a close personal relationship with the deceased.
Factors Considered by the Court: The court considers a range of factors in deciding family provision claims, including:
- The size and nature of the estate.
- The claimant’s financial situation and needs.
- The relationship between the claimant and the deceased.
- Competing claims from other beneficiaries.
- Any obligations the deceased may have had to provide for the claimant.
- The lifestyle and circumstances of the claimant at the time of the deceased’s passing.
Outcomes of a Family Provision Claim: If the court finds that the claimant has not been adequately provided for, it may order a redistribution of the estate to provide for the claimant’s needs. This does not necessarily mean an equal division, but rather an adjustment to ensure adequate provision for the claimant’s ongoing needs.

Our team at BlackBay Lawyers is highly experienced in managing family provision claims, guiding clients through this complex legal process with a focus on obtaining a fair result.

Get in touch with a Contested Estates Lawyer

Challenging the Validity of a Will

A will may be challenged if there are concerns regarding its validity. Under Australian law, there are several grounds for questioning a will’s validity, and a successful challenge can lead to the will being deemed void. Common grounds for challenging the validity of a will include:

Lack of Testamentary Capacity: To make a valid will, the testator (the person creating the will) must have had testamentary capacity, meaning they understood the nature of the will, the extent of their assets, and the impact of their decisions. A will can be challenged if there is evidence that the testator lacked capacity at the time of making the will, often due to conditions like dementia or other cognitive impairments. Legal assessments and medical records are often key evidence in these cases.
Undue Influence: If someone exerted undue influence over the testator, causing them to make decisions they would not otherwise have made, this can be grounds to challenge the will. Undue influence requires evidence that the testator was coerced or manipulated into making decisions in the will that do not reflect their genuine intentions.
Fraud or Forgery: A will may be invalidated if there is evidence it was created through fraud or forgery. Fraud can occur if the testator was deceived into signing the document, while forgery involves falsifying the testator’s signature or altering the will without their knowledge. These cases often require forensic examination and expert testimony.
Failure to Meet Legal Formalities: Australian wills must adhere to strict formalities. Typically, the will must be in writing, signed by the testator in the presence of two independent witnesses, and reflect the testator’s intentions. If these formalities are not met, the will can be challenged, although courts have discretion to uphold informal wills if there is strong evidence that the testator intended the document to serve as their will.

At BlackBay Lawyers, we work with our clients to examine potential grounds for challenging a will’s validity. We thoroughly assess each case, gathering the necessary evidence to pursue or defend against a challenge, with the aim of achieving a fair outcome.

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Defending a Will or Estate

Executors and beneficiaries sometimes face challenges from other family members or interested parties seeking to contest the will. Defending a will requires a comprehensive understanding of estate law, as well as strong evidence to uphold the testator’s intentions. Common reasons for defending a will or estate include:

Protecting the Testator’s Wishes: Executors are legally bound to honour the testator’s instructions as stated in the will. Defending a will can involve countering claims of undue influence, lack of capacity, or other issues that could compromise the testator’s intentions.
Defending Against Family Provision Claims: Beneficiaries or executors may need to defend against family provision claims that would reduce their inheritance or change the distribution of the estate. This defence often involves demonstrating that the claimant has sufficient financial resources or that the will provided adequately, given the claimant’s relationship with the deceased.
Establishing Validity: Defending a will’s validity can also include providing evidence that the will was executed properly, that the testator had capacity, and that the will represents the testator’s true intentions.

At BlackBay Lawyers, we understand the sensitivity and complexities involved in defending a will or estate. We work closely with executors and beneficiaries to protect the deceased’s wishes while navigating the legal requirements and ensuring a respectful, evidence-based defence.

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Meet The Team

Our contested estates team combines decades of experience with a track record of successful outcomes. Alongside our leadership, we’ve built one of Australia’s leading teams in contested estates and inheritance law.

Partner

Greg Leather

Greg is a highly respected Australian lawyer with a dedicated practice in contested estates. He is the first point of contact for clients seeking experienced, strategic guidance on complex estate disputes, including will contests, family provision claims, and executor conflicts.

With over a decade of experience in estate litigation, Greg understands the delicate balance between achieving clients’ objectives and navigating the emotional aspects of inheritance disputes. His expertise allows him to offer tailored, effective solutions for high-value and intricate estate matters.

If you are in need of a Contested Estates Lawyer, contact Greg below.

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Special Counsel

Gosia Klus

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Associate

Yianni van Gelder

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Associate

Isabella Orlic

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Our Approach

At BlackBay Lawyers, our purpose is to empower our clients to overcome their legal challenges with confidence that not only achieve positive results but also foster growth, innovation, and success

We do this by providing exceptional legal solutions that combine the expertise of the best legal talent with cutting-edge technology. Our team is comprised of specialists in Commercial, Regulatory, Employment, Defamation Litigation and Contested Estates.

We are dedicated to delivering the highest level of service in a holistic manner.

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Contested Estates Legal FAQ

A family provision claim allows certain dependents or family members to seek a greater share of the deceased’s estate if they feel the provision made for them in the will was inadequate. Courts consider factors such as:

The claimant’s financial needs and current situation.
The nature and value of the estate.
The relationship between the claimant and the deceased.
Competing claims from other beneficiaries and any moral obligations the deceased may have had to provide for the claimant.

Family provision claims are evaluated on a case-by-case basis, with courts aiming to balance the claimant’s needs with those of other beneficiaries.

Who can contest a will?

In Australia, only specific individuals are eligible to contest a will, often defined by their relationship to the deceased and the nature of the claim. Those who may be eligible include:

Spouses: This includes current spouses, de facto partners, and in some cases, former spouses.
Children: Biological and adopted children are typically eligible, and some states may also include stepchildren.
Dependents: People who were financially supported by the deceased at the time of their passing, regardless of familial relation.
Other Eligible Persons: Certain close or special relationships may make individuals eligible, depending on the state’s laws.

How Long Do I Have to Contest a Will

Time limits for contesting a will differ across Australia’s states and territories and depend on the type of claim:

Family Provision Claims: These typically have strict deadlines, ranging from six months to a year from the date of probate or letters of administration.
Other Grounds (e.g., Capacity, Undue Influence): These claims should ideally be made as soon as possible once probate begins, though specific timelines vary.

Because time limits are strict and missing a deadline can bar you from bringing a claim, it’s essential to seek legal advice promptly if you’re considering contesting a will.

There are several legally recognised grounds on which a will can be contested:

Lack of Testamentary Capacity: For a will to be valid, the testator (will-maker) must have been of sound mind, understanding the extent of their assets and the impact of their decisions. A will may be contested if the testator lacked this capacity, which is sometimes an issue in cases involving cognitive impairment or mental health concerns.
Undue Influence: If another person coerced or unduly influenced the testator to make specific decisions, the will can be challenged. Proving undue influence requires substantial evidence of manipulation or pressure.
Fraud or Forgery: A will may be contested if there is evidence it was forged or obtained fraudulently. This is a serious claim, typically requiring expert evidence to substantiate.
Failure to Meet Legal Formalities: For a will to be legally valid, it must meet specific formalities, such as proper signing and witnessing. If these requirements aren’t met, the will’s validity could be contested, though courts may accept informal wills if there’s strong evidence of the testator’s true intentions.
Family Provision Claims: Certain family members and dependents can bring a claim if they feel inadequately provided for in the will. Courts assess these claims based on the claimant’s financial need, relationship with the deceased, and competing claims by other beneficiaries.

Common Legal Questions about Commercial Contracts

What is a Contested Estate?
A contested estate involves disputes over the distribution of a deceased person’s assets, often arising when beneficiaries disagree with the terms of a will or when certain individuals believe they have been inadequately provided for. Contested estate cases help ensure that an estate is distributed fairly and lawfully.

Why do I need a Contested Estates Lawyer?
Handling a contested estate can be legally and emotionally complex. A contested estates lawyer has the expertise to guide you through this challenging process, protecting your interests, advocating for your rights, and navigating legal requirements and family dynamics.

What services do Contested Estates Lawyers offer?
Contested estates lawyers provide a range of services, including will challenges, family provision claims, estate mediation, dispute resolution, and representation in court proceedings. They work to resolve inheritance disputes efficiently and fairly.

How can BlackBay Lawyers assist with Contested Estate matters?

At BlackBay Lawyers, our team of contested estates lawyers brings a deep understanding of inheritance law and a commitment to fair outcomes. We offer tailored advice, strategic planning, and skilled representation, ensuring that your rights and interests are protected throughout the dispute process.

When should I consult a Contested Estates Lawyer?

Consult a contested estates lawyer if you believe you have grounds to dispute a will or seek provision from an estate. Early legal guidance can clarify your rights, strengthen your position, and help prevent unnecessary conflict.

What makes BlackBay Lawyers a top choice for Contested Estates?
BlackBay Lawyers combines legal expertise with a compassionate approach to contested estates. We understand the unique challenges of inheritance disputes and provide comprehensive, tailored solutions that respect both your legal rights and family relationships.

While it’s impossible to fully prevent someone from contesting a will, there are steps you can take to reduce the risk:

Clear Documentation and Communication: If you plan to leave certain people out of your will or distribute assets in an unconventional way, it’s wise to explain your decisions clearly. Including a written statement (often referred to as a "statement of reasons" or "letter of wishes") alongside your will can provide context for your choices, which may help counter claims of unfair treatment or undue influence.
Independent Legal and Medical Advice: If your estate plan is complex or involves excluding close family members, consider obtaining independent legal advice and, in some cases, a medical assessment to confirm your testamentary capacity. This documentation can act as evidence if your will’s validity is questioned.
Establishing Trusts: Some people create family trusts or other types of discretionary trusts to distribute assets outside of the will. While this approach doesn’t entirely eliminate the possibility of a claim, it may limit the assets available in the will, thus reducing the potential for disputes.
Binding Death Benefit Nominations for Superannuation: Superannuation doesn’t automatically form part of your estate unless you specify it. By using a binding death benefit nomination, you can direct your superannuation benefits to specific individuals, keeping them out of the estate and potentially out of reach of a contest.
Mediation and Regular Review: Periodically reviewing your will, especially following major life events, can help ensure that it reflects your current intentions and relationships. Some will-makers choose to discuss their estate plans with family members to minimise surprises, though this depends on personal preference.

It’s important to understand that none of these measures can completely prevent a will from being contested. However, these strategies can help strengthen the will’s enforceability and provide evidence of the will-maker’s intentions, making it harder for a contest to succeed. Consulting an experienced estate lawyer can help you create a more secure estate plan tailored to your circumstances.

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Practice Area - Contested Estates

Contested Estates

CONTESTED ESTATES CONSULTATION

Contested Estates Services

Areas of Expertise - Contested Estates

Challenging the Validity of a Will

Our contested estates team combines decades of experience with a track record of successful outcomes. Alongside our leadership, we’ve built one of Australia’s leading teams in contested estates and inheritance law.

Partner

Greg Leather

Special Counsel

Gosia Klus

Associate

Yianni van Gelder

Associate

Isabella Orlic

Our Approach

Contested Estates Legal FAQ

Our expertise. Your call.

enquiries@blackbaylawyers.com | (02) 9100 0889

Level 30, 133 Castlereagh St, Sydney, NSW 2000 Australia

Our expertise.
Your call.