Are estate disputes becoming more common?

Date: Feb 16, 2014

It's becoming more and more common to dispute a will, reveals The Independent. It reports the number of people who opted to challenge a will in 2010 was 38 per cent higher than in 2009, and over 100 per cent higher than the amount recorded in 2006.

But why? And what can those in the process of estate planning do to make sure their last wishes are carried out?

According to inheritance dispute expert Ian M Hull, there are several reasons why estate disputes are on the rise. The recession is one of the biggest - many people all over the world are struggling financially and hoping that a hefty inheritance will enable them to get back in the black. While this may all work out as planned in some cases, others are left wanting by their eventual inheritance payout.

Another factor that has played a role in this trend is "DIY wills". A number of companies are now offering DIY will kits that allow people to put their own will together. This may seem like a good idea, but estate planning is quite a complex process. If you opt to create a will without the help of an experienced and knowledgeable estate lawyer, you risk introducing mistakes into the document.

For instance, you may forget to leave a beneficiary out, or your wording may be unclear - making it more likely that someone will successfully be able to contest it.

Finally, the range of people who are now eligible to dispute a will is much larger than it once was. Under the Succession Act (2006), more than simply your spouse and children are within their rights to bring a claim against your estate.

Other eligible candidates include your de facto partner (whether they are of the opposite or same sex), any of your dependents and even your ex-spouse. In addition to this, the structure of the modern family can be very complex, with lots of marriages, divorces and other connections boosting the number of people who could potentially dispute your last wishes.

So, what can you do to make sure your will isn't vulnerable?

First, it's important to know what the most common grounds for estate disputes are.

Mr Hull states that "mistakes in drafting" are a prevalent issue that leads to many claims. Luckily, this can be easily avoided if you enlist the services of an estate lawyer when creating or making changes to your will.

However, it's the question of testamentary capacity that more often than not causes estate disputes to arise, Mr Hull reveals. This term covers whether or not the will-maker had the mental and legal ability to put together the will. If it can be proved that you didn't, whether as a result or mental illness or some other factor, your last wishes may be overturned.

There are a range of actions you can take to prevent testamentary capacity from being an issue. One is putting together a will as early as possible - you are legally allowed to create one as soon as you turn 18, or earlier if you are married or have permission from the New South Wales Supreme Court.

In addition to this, you might want to consider filming or recording any decisions you make regarding your will, as this will provide evidence that your will was executed when you were of sound mind.

For more information about estate planning and disputes, get in touch with the team at Craddock Murray Neumann. We have experience in both creating and challenging wills, and can offer you expert advice and support.