While blood may be thicker than water, this is not always enough when it comes to preventing families from bickering over the estate of a loved one. While it doesn’t happen all the time, it does happen and, and it would seem that having a Will in place, does not necessarily make this less likely to occur.
Typically, the larger the estate, the more likely it is for disputes to arise between the parties. This makes sense when you consider that resolution of these disputes requires litigation, the cost of which is normally attributed to the estate, thus reducing the beneficiaries’ share in the final estate. Consequently, small estates are rarely worth contesting in the first place. Beneficiaries’ risk there being nothing left when all is said and done.
With litigation having serious economic implications upon the inherent value of an estate, you may wonder why families may decide upon this as a course of action. While the reasons can be varied, I’ve narrowed it down to the 4 most common.
- The beneficiaries cannot agree on what is to happen to the estate property.
While families rarely seem to fight over investments and personal effects (all which are easily converted to a cash value), the cause for many disagreements usually revolves around what to do with the family home. One or more beneficiary may wish to retain the property (to live in or use as a rental property) and another wishes the property to be sold so that the assets may be liquefied and divided amongst all the beneficiaries. Clearly this can create a problem, particularly as homes often have memories and emotions attached to them, or, if one of the beneficiaries is still living in the home.
The deceased’s Will may give certain beneficiaries an option to purchase the family home from the estate within a certain time frame. Clearly, this is a strategy designed to short circuit most disputes. However, such a clause is not needed; there is no reason why the beneficiaries cannot come to an agreement to buy the other beneficiaries out – provided all parties can agree on a value (or indeed that a valuation needs to be undertaken). Assuming this is agreed, this can be set out in a Deed and the purchase can occur.
- The executor appointed under a Will has “apparently” influenced the deceased so that the executor will receive a greater benefit than other beneficiaries.
As our older family members become frail they increasingly rely on trusted members of the family for the purposes of shopping, banking and going to various medical appointments. It is also common for relatives to assist their older family members when attending a lawyer’s office for the purpose of getting their estate plan in order.
Normally these interactions are entirely proper and above board. However, occasionally these situations may be manipulated as an opportunity where undue influence or duress is brought to bear by the executor or beneficiary, upon the testator, to make their Will a certain way.
Whether such a situation makes the Will invalid or otherwise challengeable depends on the facts of each case. If the Will is proved invalid, then an earlier Will (if available) prevails; and if there is no earlier Will, then the deceased is said to have died “intestate” (without a will) and therefore there is legislation which decides how their estate is to be divided.
- There have been unauthorised or unfair transfers of assets during the life of the deceased.
It is common for a testator (the person making the Will) to appoint a trusted child or other relative as their attorney under a Power of Attorney as well as being their Executor.
When the Testator dies, disputes can arise where beneficiaries believe there have been unauthorised or suspicious transfers of assets (for example, monies in bank accounts and even property) during the lifetime of the deceased, which therefore reduces the amount of funds in the estate which is available to be divided upon the Testator’s death.
What often follows is a forensic examination of the transfers to determine which transfers were authorised or unlawful. We often see the “clawing back” of any unauthorised transfers back into the estate.
- The use of a Will kit
If a Will is prepared by a law firm, especially a law firm with experience and expertise in estate planning, it can be said that there is a lower probability that the validity of the document will be disputed later on. The provisions of the Will may still result in an inheritance claim where a beneficiary asserts they have been left with inadequate provision from the will.
However, the same cannot be said for Will Kit Wills (also called ‘DIY Wills’ or ‘homemade Wills’ or ‘informal Wills’). From our experience, home-made Wills consistently have one or more problems present. Commonly, such Wills possess terms that are ambiguous, or there are concerns as to how the document was executed by the deceased and whether it was properly witnessed. Furthermore, there may be issues of undue influence, duress (such as those referred to above) or even forgery.
Most estate disputes can be avoided, before the death of the testator, by ensuring that a solicitor skilled in estate planning develops a comprehensive Will and succession plan.
At Welden & Coluccio Lawyers We are the Estate Specialists. Our expert solicitors know the right questions to ask and while acting in the best interests of our clients, offer independent and considered advice, thereby ensuring You have the best estate plan for Your circumstances.