Three Melbourne law firms reveal the signs a family could fight over a will

The death of a loved one is one of the most difficult times in life without the added pain of squabbling over their will, yet inheritance disputes are on the rise. Here are the signs a family may fight over an estate.

There are some clear signs that a family will fight about a loved one’s will.

There is nothing more certain in life than death but dealing with the aftermath can stir up many painful challenges for families, aside from the initial grief.

Dealing with a loved one’s will can become a major cause of turmoil during an already emotionally fraught period.

Many messy will, estate and trust disputes have played out in the public arena in Australia, including the wills of former prime minister Bob Hawke, cricketer Richie Benaud, Richard Pratt and Bob Jane, which all became the subject of bitter legal battles.

We asked three Melbourne law firms — Tony Kelly Lawyers, Nevett Ford and Wilckens Roche Lawyers — for the top six signs a family would fight over a will.

Here, Steph Chafer (Lawyer, Nevett Ford), Tony Kelly (Lawyer and Estate Planner) and Les Kohegyi (Director and Principal Lawyer, Wilckens Roche) reveal common factors that may spark legal action over a will.

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1. Unequal distribution or perceived inequality

Steph: If beneficiaries to a will feel the distribution of estate assets is unfair or unequal, it can lead to resentment, feelings of unfairness and disputes. This is especially the case where one sibling or relative is favoured over others. To mitigate this potential issue, we recommend that clients provide written explanation in their will as to why the distribution is what it is so that their wishes are explained.

2. Complex or difficult family dynamics

Steph: Not every family gets along and some longstanding family issues, rivalries, or conflicts can resurface during the probate process, causing disputes over the will. Unfortunately there is not always something you can do to avoid this as the death of a loved one is a highly emotional time and can exacerbate existing tensions or create new conflicts among family members.

Further, if some family members are in greater financial need than others, they may feel entitled to a larger share of the inheritance, leading to disputes. The courts have held that there is a moral duty for a will-maker to make provision for certain individuals. This is especially the case with children. Should a child have a disability or be in a significantly worse financial situation that their siblings, it could result in a dispute as the will-maker may have had the moral duty to provide a greater share in the estate to that child.

Long-held family tensions and sibling rivalries can arise when executing a will.

Tony: If the family members have a toxic relationship during the life of the will-maker, this is unlikely to improve subsequent to the will-maker’s death as existing feuds will continue to play out. The partner(s) of the warring family members can also ‘fan the flames’ of the dispute.

This is more likely to be exacerbated if the relationship has been soured by events which have occurred during the deceased’s lifetime.

An indication of such issues may well be that the will-maker(s) do not feel comfortable to being able to discuss their estate plan(s) with all of the beneficiaries in the expectation that such a conference will not “end well”. While a will-maker may take the approach that such disputes do not matter (i.e. “I’ll be dead anyway”), the decision by a will-maker to ignore any potential issues only passes the burden to the executors and beneficiaries of the will.

A decision by a will maker to exclude a family member (or members) from their will is the most obvious reason for a challenge to the provisions of a will if the excluded person is an ‘eligible person’ to make a claim for further provision. The Administration and Probate Act 1958 sets out the categories of ‘eligible person’, including spouses/domestic partners, children, stepchildren, grandchildren and members of the deceased’s household. Ex-spouses can also be eligible to make a claim where they have been unable to finalise a property settlement due to the deceased’s death.

While a will-maker generally has the right to dispose of their assets as they see fit, this can be overruled by their ‘moral duty’ to such an eligible person.

Les: Sibling rivalry can be a factor, and often arises in situations where one child of the deceased may feel they have cared for and helped their parent more than other siblings. Estranged or completely disinherited family members can add another layer of complexity too.

3. Blended families

Les: Though the law in this area is clear that a will-maker’s primary responsibility is to make adequate provision for their spouse or domestic partner, it can be difficult to balance the needs of such a partner, from a subsequent relationship, with those of the will-maker’s children from a previous relationship, particularly if both the partner and children have financial need.

Tony: A will involving a “blended family” may give rise to a dispute if the will-maker has not obtained proper legal advice during their lifetime. Relevant factors include; the assets that each partner has brought to the relationship (which may be unequal); the number of children each partner has from previous relationships and together (which again may be an unequal number); the relationships between the step- or half-children and the parents; and, the order in which the spouses die.

If the partners have left all assets to each other, absolutely there is a risk that the surviving spouse will make a will to benefit their children only, to the exclusion of the deceased’s children (even though the assets in question were partly attributable to their ‘side’). We note that stepchildren are eligible to make a claim for further provision from a will where they have been excluded.

Being clear about your intentions in a will is important.

4. Testamentary capacity

Steph: If a will maker was elderly, ill, or showed signs of cognitive decline when the will was made, family members may argue that they lacked the capacity to make a valid will and a dispute may arise. This is why we always urge our clients to act in making their will sooner rather than later. Once these questions arise, we need to seek supporting evidence about capacity from a GP or a geriatrician.

5. Family businesses

Tony: A family-based commercial undertaking can also be the basis for a dispute. We often see families where one or more children has been “hands on” in the business and is expected to remain in control on the death of the parents. This is especially so in the case of a farming business. In such scenarios, the ability to make adequate provision for all of the other family members of the operative may be limited by the family’s wealth being “locked up” in the rural (or family) undertaking.

The situation can be exacerbated where the subsequent generation are unlikely to be able to continue the relationship especially where (as indicated above) some or all of them have an involvement in the day-to-day running of the enterprise, and others are simply to be in receipt of non-exertion income by way of distributions.

Often the person involved in keeping the business running has done so on the basis of a reduced remuneration based upon the promise of them being “looked after”. However, the reverse can also be the situation where the person involved is seen by other family members as having been favoured but not necessarily as a result of their “hard yakka” and there is a fear that subsequent to death of the will-maker the favoured recipient will cash in their inheritance to the exclusion of the other family members.

The split, or not, of a family business in a will can prompt legal action.

Les: Difficult or complex family relationships, particularly where one or more, but not all, eligible beneficiaries are involved in the operation of businesses or other enterprises, such as farming, controlled by the will-maker. If the terms of the will do not consider situations where beneficiaries have worked for less than market value for extended periods, expecting or being promised recognition or reward in the will, this can, and invariably does, lead to fights over the will.

6. The choice of the executor

Tony: The executor(s) named in the deceased’s last will can be a sign of what is to follow. Again, where children have had a difficult relationship during their lifetime, it can be anticipated that they will continue to argue over the administration of the estate if appointed as co-executors. In a worst-case scenario, this can lead to a ‘stalemate’ which can only be resolved by a court.

At other times, a will maker has chosen to appoint the child or children with whom they have enjoyed a good relationship and from whom they have received support and care. It is not uncommon, however, for the other “difficult” child or children to come back into the fold at the eleventh hour and convince the will maker that they should be in control of their estate subsequent to their death (often to the disbelief and disappointment of other family members). It is very difficult to prove subsequent to a will maker’s death that they were unduly influenced by such family member and have them removed from such a position.

Steph: If the deceased did not discuss their intentions or estate plans with family members before their death, the contents of their will may come as a surprise and shock, leading to disputes. This is why we always recommend to clients that they have conversations with their family. This is not only in regards to what is in their will, but also about their wishes for their funeral too.