Because of the strong emotions and dynamics between family members, arguments can often arise about the assets of a deceased person. These include questions about whether the deceased understood what they were doing when they prepared their will, or whether what they have gifted to family members under their will is appropriate.
Mediations are often very helpful in resolving such disputes, providing the parties with a forum to air their grievances and work towards a resolution together.
If family disputes over estates cannot be resolved, the Supreme Court of New South Wales has special powers to assist in most circumstances. The most common area of litigation in New South Wales is in relation to Family Provision claims. These claims involve eligible persons (usually close family members), seeking greater provision from the estate than was provided in the will.
There are many instances where a claimant can be confident that the Court will make greater provision, an example of which is a spouse of the deceased who has only been granted a life tenancy in the family home. In that instance the Court will usually grant that person outright ownership of the family home.
Sometimes there is a dispute over whether the deceased understood what they were doing when they prepared their will. In these circumstances, the Court can assess, with the assistance of expert evidence, whether the deceased had the necessary mental capacity to make a will. If the person did not have capacity, the Court will then look to the previous will or in the absence of an earlier will, apply the rules of intestacy to determine the order of distribution.
An executor of an estate has special obligations to ensure that the estate is properly administered and that any claims against the estate are properly defended or, where appropriate, settled. We regularly assist executors with this duty and are currently defending a number of estates in relation to claims brought. We also have considerable experience in assisting parties who feel aggrieved by the provision made in an estate, and we can seek greater provision for you.
There are sometimes disputes about a person's estate during their life. For example, there may be allegations that another person has taken advantage of an incapable person, or is not properly caring for them. We can assist in these disputes as well,which are usually brought before the Guardianship Tribunal or the New South Wales Supreme Court for determination.
We welcome any enquiries you may have regarding this area of law.
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