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Will Disputes Victoria

Common Types

There are three common types of Will Disputes:

  • Will Contest: This is when a dispute arises because someone has been left out of a Will, or feel they have been inadequately provided for by the Will. In Victoria they would then launch a Family provision claim under the Administration and Probate Act 1958 (Vic). There are very similar Acts governing this right to contest in each State.
  • Administrative Disputes: These are Will disputes that relate directly to how the Executor is administrating the Estate. There are several types of ways an executor can breach his or her duties, but the most common are: (1) Misappropriation; the executor uses an Estate’s assets to pay his/her personal liabilities or fraudulently disposes of them for a profit. (2) Maladministration; where assets have been dealt with in a manner other than provided in the Will or by law. (3) Breach of trust; the executor generally breaches his or her duty of care towards the state – e.g. they failed to demand and enforce payment of a debt owned to an estate, or failed to observe the provision or directions in the Will.
  • Construction Disputes: These disputes relate directly to the wording and meaning of the Will. If there is an uncertainty in the wording of the Will, then one can apply to the court to have the court decide what the deceased intended when they were writing their Will.

Case Analysis

  • Will Contest: Estate of Brown (Decd) [2016] VSC 258
    This is a perfect, Victorian example of an application for family provision which as a result created a Will ContestFacts: The applicant was a domestic partner of the deceased at time of death. The respondents were the executrixes –  his adult daughters. The deceased’s Will left the applicant with a life interest in property in which they resided together and income from investment but nothing else. The applicant sought absolute interest in property and additional amount from the Estate as the deceased had a responsibility to make adequate provision for applicant’s proper maintenance and support

Decision: It was held that a life interest and income from investment did not make adequate provision for applicant’s proper maintenance and support considering the Estate was worth $1.7 million. Thus, an order that ownership of property be transferred to the applicant and for her to be given an additional $500,000 from the Estate was granted.

  • Administrative Disputes: Skaftouros v Dimos [2002] VSC 198
    This is another great Victorian example, but this time demonstrating how if an Executor fails to perform his or her duties it creates an administrative dispute.  Facts: The beneficiaries sought the defendant’s removal as executor on basis of: Serious and inexcusable delays in obtaining probate and administration of estate; failure to properly administer estate; failure to provide accounts and information to beneficiaries when requested; and failure to pay estate’s creditorsDecision: The application to remove the defendant as executor was granted. This was because there was evidence that the defendant terminated the Estate’s accountant and real estate agent without explanation, left property vacant, refused to provide beneficiaries with Estate’s books and accounts to allow them to inspect trust account records, and the Estate was still not finalised three and a half years after the testator’s death.

In light of the above, if you think that you may find yourself in a Will Dispute, or needing to challenge a will please do not hesitate to contact the team at Hentys Lawyers today.

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