What is Estate Litigation?

What is Estate Litigation? Estate Litigation is a challenge to the Will of a deceased person. This challenge can arise in a number of ways including:

  • The belief that when the deceased made their Will they were lacking testamentary capacity, which is the mental capacity and intent to make a Will. This issue will often arise when the Will was made at a time that the deceased was unwell or suffering from dementia.
  • The belief that the deceased was unduly influenced by another person when they made their Will and this person benefited under that Will.
  • The Will is ambiguous or poorly drafted and the Court is required to determine the intentions of the deceased before the Estate can be distributed.
  • An eligible person challenges the Will by making a family provision claim. In essence a family provision claim is a claim for provision from the deceased’s Estate on the basis that the deceased failed in their obligation to make provision for their proper maintenance, education and advancement in life.

In the New South Wales Supreme Court decision of Smith v Public Trustee the Estate Litigation was commenced by the children of the deceased who had been left out of the deceased’s Will.

The deceased was 59 when he died and he was survived, by his two children. The deceased’s Estate was valued at approximately $580,000 and in his Will, the deceased left property to his two nephews with the remainder of his Estate to the Fred Hollows Foundation.

The deceased was divorced from his children’s mother and after they separated there was virtually no contact between the deceased and his children. At the time of the separation the deceased’s children were 15 and 9 years of age and evidence heard by the Court showed that the deceased had been an angry man with abrupt mood swings who treated the children in an upsetting manner. Both of the children gave evidence that they were frightened of the deceased at the time of the divorce. The deceased attempted to contact his children once he knew he was ill but they refused to see him and sent him letters instead.

After considering the evidence of the relationship between the deceased and his children the Court accepted that both of the children were still very frightened of the deceased and the lack of contact was due to the deceased’s actions.

The Court decided that the deceased had not adequately made provision for the proper maintenance, education and advancement in life for his children and ordered that each child receive $150,000 from the deceased’s Estate.

If you need advice on Estate Litigation in NSW, you need to seek legal advice from an Expert Wills & Estates Lawyer. Graeme Heckenberg is the principle lawyer and an expert in litigation law, looking at such cases like the one in this artcile for the past 20 years. .

 Sydney Wills Lawyers specialise in Wills & Estate Law and pride ourselves on our open and honest communication with clients.

Call today for all your Estate Litigation needs on 9221 2779.