Estate Disputes

Estate disputes involve a range of claims and disagreements regarding a deceased estate, which can be very challenging for beneficiaries and executors. Family dynamics can be complicated and there are many reasons why estate disputes arise and why a Will may seem unfair, or somebody has unexpectedly been left out. This is a complex area of law, and such cases are usually hard fought and highly emotional.

Family Provision Claims

In Australia different states and territories provide statutory rights for eligible persons to contest a Will on the basis that they have not been left adequate provision by the will maker. Different time limits and criteria apply across the various jurisdictions, so it is important to obtain advice specific to your circumstances. A successful family provision claim may result in an adjustment to the terms of the Will in favour of the claimant, whether the claim is satisfied through negotiation or by court order.


In Queensland, an eligible person generally includes a spouse or de facto partner of the deceased; a child, stepchild or adopted child; and other categories of persons who were dependent on the deceased (provided certain circumstances exist). If you are thinking of making a family provision claim, we can explain the eligibility criteria and how it applies in your circumstances and assist with your application.

If you are the executor of an estate facing a family provision claim, we can advise you how to proceed to manage and resolve the dispute without unnecessary costs being incurred and with the minimum amount of disruption and stress for the parties.

The effective resolution of disputes is an important consideration in any family provision claim as often the costs of litigation arising from the dispute are paid from the estate. When this happens the beneficiaries of a deceased estate may find that costs soon escalate and considerably reduce the available asset pool.

Grounds for making a claim

A successful family provision claim not only requires claimants to fall within the category of eligible persons, but they must also show that the deceased person failed to make adequate provision for the claimant’s proper maintenance, education, or advancement in life.

If determining a claim, a court would consider a range of factors including, but not limited to, the claimant’s financial position and relationship with the deceased, the obligations or responsibilities the deceased had to the claimant, the size of the estate, and other persons who may be eligible to make a claim on the estate.

As each estate and the circumstances leading to a claim are unique, it is not possible to apply a simple formula as to how an estate will be divided in the event of a successful claim.

Estate disputes – challenging the validity of a Will

Grounds for disputing the validity of a Will generally include:

  • Undue influence – allegations of a party exerting an unreasonable level of influence over a person which resulted in a will maker preparing his or her Will in a certain way, typically in favour of the person exerting the pressure.
  • Fraud or forgery – disputes regarding the integrity and / or authenticity of a Will, for example, that the signature on the Will is a forgery or that the Will was fabricated by somebody other than the deceased person.
  • Lack of mental capacity – claims that the will maker lacked the necessary legal capacity (referred to as testamentary capacity) to make a Will, for example, that the will maker was suffering from dementia or some other form of illness affecting capacity at the time the Will was made.

Assisting with other estate issues

Not all Wills and estate matters proceed in a routine manner, and it is sometimes necessary to obtain advice regarding various aspects of a deceased person’s Will or the administration of an estate. These issues might include:

  • correctly interpreting the terms of an ambiguous Will;
  • dealing with obvious errors or mistakes, for example, if the Will refers to “my son John” when in fact the deceased only had a daughter named Jane and no other children;
  • disputes about whether an executor should be allowed to act in that role;
  • disputes between beneficiaries as to how the estate should be administered;
  • situations where one or more of the beneficiaries request an executor be removed and replaced.

Whether you are a potential claimant or an executor of an estate, it is important to understand your rights and to obtain sound legal advice. Our experienced and caring lawyers can guide you through the complexities of family provision claims and estate disputes to help you achieve, as far as possible, a timely and satisfactory resolution.

If you need any assistance, contact one of our lawyers at [email protected] or call 07 4992 3600 for expert legal advice.