Estate Disputes

Disputes over deceased estates are unfortunately common and can arise where there is disagreement over the deceased’s assets. The following outlines the most common types of disputes that can occur. 

Family Provision Applications  

A significant proportion of estate disputes arise from claims that the deceased’s will or the rules of intestacy have not made adequate provision for the proper maintenance and support of certain eligible persons (spouse, child, or dependant). These claims are governed by section 41 of the Succession Act 1981 (Qld), which confers on the court a discretion to make provision from the estate if adequate provision has not been made. Courts apply a two-stage process: firstly, assessing whether the applicant has been left without adequate provision, and secondly, if so, what provision should be made. Competing interests of other beneficiaries and the size of the estate are significant factors a court will take into consideration. 

Disputes over the Validity of Wills 

Will validity challenges can arise due to allegations of lack of testamentary capacity of the deceased, undue influence, fraud, or failure to comply with formal drafting or execution requirements. Disputes may also arise where the original will cannot be located or is questioned due to foreign elements such as international wills. 

Construction and Rectification of Wills 

Ambiguities, mistakes, or unclear intentions in a will frequently give rise to proceedings for construction or rectification. The court’s jurisdiction includes approving a rectification where the will does not reflect the testator’s actual instructions or resolving disputes as to the intended beneficiary where there is a misdescription. The court will generally construe terms in favour of giving effect to the testator’s discernible intention where possible. 

Removal or Replacement of Executors and Administrators 

Friction among executors, breakdown in relationships, bankruptcy of an executor, or perceived failures in administration may lead to applications for removal or replacement under s 6 of the Succession Act 1981 (Qld). The guiding principle is whether the executor’s conduct jeopardises the proper administration of the estate. Courts are generally reluctant to override the deceased's choice of executor unless clear failures in duty are demonstrated. Appointment of an independent administrator is within the court’s jurisdiction, particularly if administration is imperilled, where the relationship breakdown between executors and risk to administration justified their removal and replacement with an independent administrator. 

If you or anyone you know requires assistance with an Estate Dispute please contact our Team on 07 4417 4417 or willsandestates@mobbsmarr.com.au.