What is Estate Litigation?

The area of estate disputes is a stressful and emotionally charged one. The feeling of being unfairly treated by a deceased loved one or dealing with conflict during the division of an estate can lead to animosity and resentment between family members and sometimes friends.

It is best to seek professional legal advice from lawyers who know what estate litigation involves and can facilitate the most beneficial, timely and cost-efficient outcome for your specific circumstances.

When a person dies, they will either leave a valid Will or die intestate (without a Will). Regardless of which of these situations arise, there may be someone who believes they did not receive a fair distribution from the estate.

Conversely, an executor of an estate may face a claim from a person who believes they have been overlooked. In such a case, the claim is brought against a person in their capacity as executor which they will need to defend.

Who can challenge a Will?

Each state has specific laws around contesting Wills but as a general rule there are certain categories of people who may challenge a Will including:

  • Spouse or de-facto/same-sex partner
  • Children or stepchildren
  • Grandchildren
  • Former spouse or de-facto/same-sex partner
  • A dependant of the deceased

Types of Claims:

Testators Family Maintenance (TFM) claim

In Victoria, the most common estate dispute is known as a Testators Family Maintenance (TFM) claim. It is typically brought in the Supreme Court of Victoria by family members or dependents who have not received an adequate share of a deceased estate or have been left out of the Will entirely.

The Administration and Probate Act 1958 provides that a deceased should make provision for the proper maintenance and support of a person to whom the deceased owes a moral responsibility. In deciding such a claim, the Court will consider if such a responsibility exists, whether they have already been adequately provided for in the estate and what their own capacity is to provide for themselves.

There is also a consideration for how the other beneficiaries will be impacted by the claim.

Capacity Claim

For a Will to be valid the Will maker must at the time of making the Will have what’s called “Testamentary Capacity”, which is essentially soundness of mind, memory and understanding.

To have the requisite soundness of mind the person must:

  • understand the nature and effect of a will
  • understand the nature and extent of their property
  • comprehend and appreciate the claims to which they ought to give effect
  • be suffering from no disorder of the mind or insane delusion that would result in an unwanted disposition.

Such claims require proof of the lack of testamentary capacity, which is typically established by medical practitioners and psychologists.

If such a claim was successful, the Will would be declared invalid and the distribution of the estate would be in accordance with either:

  1. any previous Will of the deceased which was executed at a time when the deceased did have the requisite capacity; or
  2. if there is no prior valid Will then in accordance with the intestacy provisions of the Administration and Probate Act 1958 (Vic).

Undue Influence Claim

Such a claim may arise where someone may have used undue influence to coerce the Will maker into making a new Will or amendments to an existing Will to benefit themselves. These are generally difficult to prove as the evidence required would be best able to be provided by the deceased Will maker. Coercion can either be violent, a deprivation of liberty or some other behaviour that manipulates the Will maker to change their Will from what they would have done if they were free and independent.

Breach of Trust

Executors have a responsibility to act in the best interests of the beneficiaries of an estate.  An executor has control of the financial decisions in finalising the estate and there can be instances of assets not being dealt with correctly or a dispute as to how the assets are divided.

If a conflict of interest arises or if an executor fails to act in the best interests of the beneficiaries, they can be removed. The process of removal is by way of an application to the Court to seek orders for an administrator to be appointed. Other court orders may include dealing with the sale or distribution of assets and production of estate records to resolve the dispute between the beneficiaries and the executor.

Superannuation & Insurance Claims

Where a person is not able to claim against a deceased’s Will they may be able to make a claim against the deceased’s superannuation fund or life insurance policy. The evidence required and eligible persons who can make such a claim are specific and can be onerous.  Such claims are always best dealt with by a lawyer with experience in this area of law.


To discuss any estate dispute issues and the options available to you as well as our no win/no fee options, please contact Rabia Javed-May or Lesley Davis of Morrows Legal on 03 9690 5700.

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