What makes a will valid

Estate litigation is concerned with disputes about deceased estates. Most commonly estate litigation involves will challenges and family provision claims. It can also include applications for compensation to be paid to the estate because of wrong-doings that have affected the value of the estate. Superannuation disputes are increasingly common, as the pool of funds invested in superannuation grows.

Sometimes people talk about challenging a will. This can mean challenging the validity of the will on the basis that the will is not the product of a free and capable mind. To make a valid will there are five primary, essential requirements. They are:

• Capacity to make a will;
• Intention to make a will;
• Knowledge and approval of the contents of the will;
• Compliance with the proper requirements for signing and witnessing a will; and
• The absence of fraud or undue influence

These factors all seem to be obvious and make sense. And yet litigation of wills on the basis of these matters is quite common, and extremely upsetting for family members affected by the litigation, not to mention very expensive. It also delays the receipt of inheritance assets by beneficiaries.

The other most common form of deceased estate disputes are family provision applications in which a person (spouse, child or dependent of the deceased person) seeks provision from the estate on the basis that the will (or the intestate estate) fails to make adequate (or any) provision for them. We have absolute freedom to leave our property however we wish, but this freedom is subject to duties we have to look after our family.  This cause of action means that our estate can be held up and diminished by legal costs. It is worth thinking about whether your estate might be affected by an unhappy family member, and to obtain advice about how to manage that risk during the planning stage.

Some other less common forms of deceased estate litigation include:

• Rectification applications – where there has been a clerical error in a will;
• Applications for interpretation of the meaning of a will “constructions applications”;
• Court-authorised will applications for people who do not have capacity to make a will;
• Informal will applications where wills have not been properly signed and witnessed;
• Equitable actions giving rise to obligations in favour of beneficiaries such as where there has been a promise to leave a gift and the promise has not been kept by the deceased;
• Actions alleging unconscionable dealings where a beneficiary has taken advantage of their relationship with a deceased person;
• Applications for compensation where property has been wasted by attorneys under powers of attorney;
• Applications to have executors replaced where there are delays or other problems in the administration of the estate;

and these are just a few examples of the types of estate litigation of which we have extensive specialist experience and knowledge.

These examples show why people sometimes have no choice but to make application to the Court for the purpose of resolving contentious issues. We encourage potential litigants to explore all options for resolving disputes without commencing legal proceedings. We think that most people would prefer to save money and trouble, and avoid the risks and drawn out delays that estate disputes almost always involve.

These examples also illustrate why estate planning is not just about a will, but about careful consideration of a range of unexpected factors that can cause estate litigation, and putting in place the correct strategies to achieve estate planning goals.

It is not always possible to completely avoid deceased estate litigation, but careful planning and preparation helps to avoid some of the most common problems, and to minimise the disruption and expense involved with deceased estate litigation.