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Undue influence, Coercion and Wills

In a recent article we outlined legal issues regarding capacity to make a Will.

A different but related question that is arising more frequently is whether a deceased person who has legal capacity has been coerced into changing his or her Will late in life. This concern is especially relevant in cases involving will disputes and individuals who may have concerns that they have been left out of a will.

Most elderly people, whilst still having legal capacity, find it harder to make decisions and become more easily influenced by those around them. Instances of greater pressure being applied to older people by potential beneficiaries seem to be increasing. [...]  READ MORE →

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Writing your own Will and Will Disputes

Will Disputes – A Cautionary Tale Against Trying to Write Your Own Will:

Etherton v Mitchelmore [2024] NSWSC 170

Caterina Felice Bohen (‘the Deceased’) died in August 2021. She was survived by two adult daughters and five grandchildren. In a will dated 10 August 2016, the Deceased purported to leave her grandchildren most of her estate. At the end of 2020, the Deceased handwrote a note on the back of a used envelope that read ‘I, Caterina Felice Bohen wish to leave my house to Robin Etherton of Roseville, as he was the only one who ever helped me when I needed help’. She then gave this to Robin Etherton without retaining a copy. The central issue in this case was whether this document could be accepted as one that contained the Deceased’s testamentary intentions. [...]  READ MORE →

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Probate Caveats (NSW)

PROBATE CAVEATS (NSW)

If you think the will of a loved one being probated is invalid or there is another will that supersedes the will being probated, then you should consider placing a caveat over the application for a grant.

You could protect your interest in the deceased’s estate, by lodging a caveat to stay the proceedings seeking Probate or Letters of Administration or resealing, until such disputes are resolved.

Grounds for lodging a Probate Caveat

A Probate Caveat could be lodged if you intend to challenge the validity of a will, where there are concerns of the will being forged, the will-maker not having testamentary capacity to make the will or the will being executed under duress. [...]  READ MORE →

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Notional Estate – what does it mean

Notional Estate – what does it mean?

Introduction

Will disputes, matters relating to distribution of a deceased estate, contested wills and the rights of beneficiaries are issues that an experienced will lawyer understands.

 For various reasons, a will maker may form an opinion that they are not morally obligated, or duty bound to make provision for certain persons in their will. For example, where a will maker has been estranged from their child for several years, they may not feel duty bound tomake any provision for this child.

 In the context of blended families, will makers often are faced with hard decisions about who they would like to benefit more from their estate given the competing financial needs of adult children from their previous relationship and their current spouse. Having made those hard decisions, asking an experienced wills lawyer to prepare the will or will update will lessen the risk of a successful will dispute. [...]  READ MORE →

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Estate Planning and Will Disputes

Why Make Estate Planning Documents in the First Place?

Given the rise of instances of financial elder abuse, contested wills due to capacity issues of the testator, undue influence and family provision claims, is it even worth having these legal documents in place, when the potential for misuse or other legal procedures are available?

The answer is yes! Although such instances exist, the alternative is decidedly more complicated and often a longer and more expensive process.

When considering estate planning documents such as enduring power of attorney and enduring guardian documents, it is essential that the person you wish to care for you or look after your affairs has the power to do so. While the potential for abuse of this power is present, without these documents, should you become incapacitated, nobody may be able to pay your bills or sell your property should you require the funds to move into a suitable aged care facility. [...]  READ MORE →

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Will Disputes – Who can be a claimant?

Estate challenges and Family Provision claims – Who can be a claimant?

Those who may be able to make a claim against the estate, i.e. under a family provision claim generally are those for who the will maker were responsible for. The most common categories are as follows:

Spouses

It is recognised that the will maker has a primary responsibility to provide for their spouse and hence any spouse of the will maker, whether they are married or de-facto, is entitled to make a claim against your estate.

Children

Children are eligible to claim against a will maker’s estate, with applicants including biological children and adopted children, whether they are minors or adults. Stepchildren are not included in this category but may fall under ‘anybody else’. [...]  READ MORE →

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Will Disputes and Testamentary Capacity

Will Disputes and Testamentary Capacity

The term testamentary capacity is relevant in will disputes as it concerns the question of the Will maker’s intention at the time of conveying their wishes. There is a long standing principle in all aspects of law that without capacity, a person is not capable of understanding the consequences of their actions and therefore is unable to instruct a solicitor.

Through the case of Aleta Gooley v Brett Gooley (2021), the court explains that lawyers when receiving instructions from a client making a will have a role to play in determining whether the will maker or testator has capacity. An experienced solicitor is used to dealing with people making wills and is attuned to the red lights that flash when a person who is of suspect capacity comes across their path, and therefore provides valuable evidence of the Testator’s testamentary capacity. [...]  READ MORE →

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Will Disputes

Joint Property and your Will

Most Will Disputes occur from contention over how the Estate was supposed to be divided among the beneficiaries, rather than how the law entitles those to the assets in the Estate.

The primary example being a property purchased in a couple’s names as Joint Tenants. Upon the death of one owner, the law of succession states that the property is automatically passed to the joint owner on title. If the deceased’s Will states that their share of the property is to be passed to their beneficiaries rather than what the law of succession demands, this is how Will Disputes occur. [...]  READ MORE →

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Will Disputes and Removal of Executors

Executors Not Easily Removed by Court
The case of Budulica v Budulica [2017] QSC 60 confirmed that that a testator’s choice of an executor will not flippantly be changed by the court when will disputes arise. The court suggested that there usually must be circumstances such as misconduct in administration to justify the removal of an executor. However, it was also suggested that even in light of misconduct in administration the court will consider relevant mitigating factors before exercising its discretion to remove an executor. [...]  READ MORE →