Defending a Will Contest between Siblings
Defending a Will Contest between Siblings
8 Things You Need to Know to get the best result
Small estates ($1 million or less) Will contest claims between siblings of a deceased parent are common.
Executors and sibling beneficiaries often voice their frustration over how the testamentary wishes of deceased parents can be challenged by an excluded child or step-child.
A child or step-child of a deceased parent is eligible to claim provision from an estate in Victoria.
To successfully claim, the Court must be satisfied:
- The deceased parent had a moral duty to provide for his or her child or step-child; and
- That the distribution of the estate fails to make adequate provision for the child or step-child’s proper maintenance and support.
If you are an executor of a deceased parent’s small estate and a sibling or step-sibling has made a claim for provision, these are the key questions to answer in defending the claim to get the best result.
1. Was the Will claimant estranged from the deceased?
Estrangement is relevant to “moral duty”.
Estrangement between a parent and child, on its own, does not ordinarily prevent a child from entitlement to provision.
However, in certain circumstances, such as where the child treats their parent callously by withholding, without proper justification, support and love in their parent’s declining years, or does so with hostility, the deceased is arguably entitled to make no provision for the child.
2. What competing moral obligation did the deceased owe to the named beneficiaries of the Will?
This involves examination of the nature / quality of the relationship between the deceased and each beneficiary.
Matters such as what level of love, support, assistance and care each beneficiary provided the deceased especially during any declining years will potentially assist in defending the claim.
3. Does the Will include reasons for not making provision to the child or step-child or are there any other letters or notes setting out testamentary intentions?
The Court must have regard to a deceased’s testamentary intentions.
The defence to a claim will be strengthened if the reasons set out are reasonably based in setting out for example callous or hostile conduct of the claimant toward the deceased. The matter should be carefully examined.
4. Is the size and nature of the Will estate relevant?
The answer is yes.
As a general principle the smaller the value of the estate, the more difficult for a claimant to get provision of substance.
Getting estate assets such as real estate accurately valued should be completed.
Moreover, if the nature of the estate comprises real estate (a house) and not much more, that fact may make it more difficult to claim provision especially in circumstances where one or more of the beneficiary children provided for in the Will have no house of their own and intend to live in the deceased’s house.
5. Is the Will claimant not capable by reasonable means of providing for their proper maintenance and support?
This is a critical issue to defending a claim.
The question involves an examination of the claimant’s asset and income position and whether they are adequate to meet his or her current and likely future financial needs.
It is important to carefully review claimant evidence and obtain relevant documents such as real estate title searches, value appraisals, current bank and superannuation balance statements, tax returns/ assessment notice and current liabilities (mortgage and credit card statements) to test the financial need assertions of the claimant.
The weaker the claimant’s financial need, the stronger the defence to the provision claim.
6. What impact would provision to the Will claimant have on each beneficiaries’ financial circumstances.
The competing financial needs of each beneficiary is an important consideration in potentially assisting the defence of the claim and requires detailed instructions and assembling of relevant evidence. The defence to a claim will be strengthened if the evidence shows some or all of the beneficiaries are in financial need and any provision of substance to a claimant would have a deleterious impact on the beneficiaries’ financial circumstances.
7. What if any benefits did the deceased during their lifetime give the Will claimant?
The issue should be examined and if the evidence is the deceased provided the claimant benefits of substance, it is a potential factor in reducing the claim value.
8. Can the Will estate be protected on costs?
The answer is yes.
Once a proper assessment of a claim is made, an Offer of Compromise under the Court Rules detailing a settlement amount can be served. If the Offer is not accepted and the claimant does no better than the offer amount on case completion at trial, the estate will not have to pay the claimant’s allowable costs from the Offer expiry date. A claimant’s allowable costs to case completion at trial may be in the range of $40,000-$60,000 so costs protection to the estate is an important issue.
Find out more about defending a small estate contesting Wills claim between siblings
Talk to one of our contesting Wills defence lawyers now about how to best defend a Will dispute claim.
Our expert contesting Wills defence lawyers can help you successfully defend provision claims and ensure you get the best result.
Galbally & O’Bryan is one of Victoria’s leading contesting Wills defence law firms. We offer a free first consultation over the phone. Partner Andrew O’Bryan and Senior Associate Carl Wilson are expert Wills lawyers. Both Andrew and Carl will review your case and provide clear, easy to follow advice and take action to give you the best possible outcome.
We have offices at Melbourne, Dandenong and Pakenham.
Contact us or call us on 03 9200 2533.
How to contact our Wills & Estates Lawyers
Contact out Wills & Estates lawyers
Andrew O'Bryan
Galbally & O'Bryan
Lawyers
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533 I M 0400 469 704
E aobryan@galballyobryan.com.au
Carl Wilson
Galbally & O'Bryan
Lawyers
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533
E cwilson@galballyobryan.com.au
Dandenong Office
Shop 9 / 147-151 Foster Street
DANDENONG VIC 3175
T (03) 9769 2510
E nglavic@galballyobryan.com.au
Pakenham Office
Shop 1, 15 John Street
PAKENHAM VIC 3810
T (03) 5941 7990
E pakenham@galballyobryan.com.au