Family is the single most important thing in everyone’s life. We want only the best for them, so we write Wills. These documents reveal our wishes and commands regarding our estates after we are gone. In a way, this protects both our families and hard-earned money.
However, the family may find it cumbersome to navigate the Probate process because the Will-maker in question is no longer alive. This difficulty often leads to conflicts amongst the parties involved.
Here are 5 common disputes we saw in Probate and letter of administration processes. Knowing them will help you understand your due course of action.
1. Questioning the Will’s Validity
Sometimes, even when a Will exists, beneficiaries may question its validity. It is a nightmare when that happens! The entire process goes off track if the Will itself becomes invalid.
A beneficiary may question the validity of the Will for any of the following reasons:
- Will was not prepared correctly. It usually happens with people using DIY Will kits or drafting their own Wills.
- There is evidence of the undue influence of a third party on the Will-maker.
- Testator had no testamentary capacity.
2. Accusations of Undue Influence
In some cases, a beneficiary may face accusations of undue influence over the testator, resulting in a Will that is not entirely as per the Will-maker’s wishes. You can consider it as a form of manipulation — intimidation, flattery, blackmail, or any other kind of deception.
Although it is challenging to prove it. Talk to a Wills and estates lawyer, who will tell you what evidence you need to gather to prove undue influence. Some examples of evidence that might be helpful are as follows.
- Old Will: Documents such as previous Wills or estate plans that show a substantial change in the deceased person’s intentions. It suggests a possible influence to change their Will.
- Financial Records: These records show whether there were any unusual transactions or changes to the deceased person’s financial affairs.
- Expert Testimony: Expert witnesses such as doctors or psychologists can provide evidence of the deceased person’s mental state and if they were susceptible to undue influence.
- Witness Testimony: Statements from a witness who knew both the testator and influencer about any incidents of coercion or controlling behaviour.
- Medical Records: These prove the mental or physical incapacity of the testator, which may have put them in a vulnerable position.
However, the necessary evidence can change according to your specific circumstances. Hire a Probate consultant to guide you through this process.
3. Executor Going Against the Will
Every Will has an executor who is responsible for dealing with the testator’s estate. The executors must follow the instructions left behind by the Will-maker. When this does not happen, the beneficiaries will dispute the case. This delays the Probate process and makes it all complicated.
In this case, forensic accountants investigate and determine if there was any mismanagement of the deceased’s estate. If they find any suspicious transactions of money or assets in the investigation, the Court may remove the executor.
In addition, the said executor’s share in the estate (if they are also a beneficiary) will also bear a deduction as a consequence of mismanagement.
4. Disagreements Amongst Beneficiaries
Of all the disputes, disagreements amongst beneficiaries are the most common. The more the number of beneficiaries, the higher the chance of a disagreement.
It normally happens when family members cannot agree on settlements, such as whether to sell the family property. Examples:
- Real estate issues
- Joint ownership disputes
- Inherited estate share disputes
- Personal property disputes, such as jewellery.
Resolving these disputes during Probate can be complex and require expert legal advice and support.
Some possible avenues for resolution include mediation, negotiation, or court action. It is vital to seek legal advice as soon as possible if you are involved in a property dispute during Probate.
5. Disputes Over Delay in Distribution
Nothing is more frustrating than the executor delaying the distribution of the deceased’s estate. As said previously, the executor of the Will has specific duties they must carry out. One of those duties is the timely distribution of the estate as per the the testator’s wishes.
To do that, the executor must obtain a Grant of Probate from the Court. It is a necessary grant in most Probate cases. However, there is no time limit to do it other than the ‘executor’s year.’ It means the executor must apply for Probate within one year of the testator’s death.
When the executor crosses this limit, beneficiaries can apply to the Supreme Court requesting to set a deadline for obtaining the Grant of Probate. Then it is binding on the executor to take necessary actions. If the executor fails to do it even then, beneficiaries may remove the executor.
Without a doubt, estate planning and settlement is a complex process with many layers — Grant of Probate, letters of administration, etc. However, you need not fear it if you have the right guidance and patience.
Professional guidance is crucial in resolving these disputes. So, make it a priority to seek an experienced Probate lawyer to help you through. Probate Consultants is an excellent choice when it comes to estate planning and Probate. You can arrange a free consultation with one of their experts to get started.
Their consultants will provide clear and comprehensive answers to your questions — from how long does Probate take in NSW to how to apply for a Grant of Probate. So, do not hesitate to reach out to Probate Consultants.