Where there’s a will there’s a dispute

There’s nothing like a will to split a family and if there are existing estrangements, it can quickly bubble over into the courts.   As JOHN de GROOT  writes, that’s something best avoided.

A sad phenomenon of modern society is the estrangement that occurs in some families, leaving Courts to determine the impact of estrangement on an  applicant’s right to dispute a will.

In a recent case involving a 35-year estrangement, the President of the NSW Court of Appeal said: “This is a difficult case. The difficulty arises from  the need to apply a statutory test couched in evaluative language embodying human values and norms of conduct deeply personal to those involved and  often incapable of clear expression.”

From early times it has been said that the Family Provision legislation is a living piece of legislation and our application of it must be governed by  the climate of the time. This means that a provision, or no provision for that matter, for a beneficiary in a will that may have been acceptable 20  years ago may no longer be so.

This feature of Family Provision claims makes it a challenging area in which to predict outcomes.
 In the case of the 35-year estrangement, the applicant daughter was awarded $60,000 (in lieu of the legacy of $10,000 under the will) from an estate of  about $800,000.  In other cases, the court has been influenced, to some degree at least, by who caused the estrangement.

However, in one case it was said that: “Events viewed years later through the cold prism of a courtroom may give a different impression than when the  events are set in the context of the raw emotions experienced at the time. The ‘wise and just’ testator or testatrix must be taken to understand this”.

A reasonably high level of forgiveness or understanding appears to be expected.

Costs:  The Courts have expressed growing concern that legal costs can sometimes be disproportionate to the size of the estate or the benefits ultimately  received.

There have been cautions, particularly to executors, that their role is not to defend the terms of the will at all costs.

Generalisations that executors are entitled or obligated to uphold the will, may provide no guidance at all in some cases.  Although costs are normally  payable by the estate, that can depend on the conduct of the parties as the above quote illustrates.

Affidavit material: The dynamics within a family have often developed over a long period of time. Although usually of great importance to the parties,  many incidents, allegations, and counter-allegations around family history are unlikely to advance an applicant’s case and the Courts have made it clear  that they expect legal representatives to prevent inappropriate material being filed – often to the frustration of the parties.

Mediate or Settle: Against this background of issues, it should not be surprising that settling these claims is an increasing imperative because: 

• The range of outcomes can vary significantly, from case to case and also  over time;

• These applications are expensive, with some level of uncertainty as to who pays;

• Success at first can be a prelude to defeat on appeal;

• Whatever the final outcome, family dynamics are likely to be worse not better.

Careful estate planning and good communication can often ensure a trouble free succession of family assets. When that does not occur, an early and  serious effort to resolve a dispute before it develops into formal litigation is highly desirable.

Dr John de Groot is a succession law specialist at de Groots, wills and estate lawyers degroots.com.au