Legal expert says sibling rivalry to blame for disproportionate estate disputes

Date: Jan 06, 2012

A leading legal expert has suggested that a few simple steps are all that is necessary to help family members avoid becoming embroiled in an ongoing estate dispute.

While performing research for the Australasian Institute of Judicial Administration (AIJA), professor at UNSW Prue Vines found substantial evidence to suggest that explaining the reasoning behind the contents of a will could improve understanding between relatives.

Vines looked into 105 cases that had been brought before the Supreme Court of NSW and Victoria and found that many of the most fiercely contested estates were between siblings.

She has examined three years' worth of cases after a number of judges expressed concern over the costs incurred by such intense legal struggles, with frequent use of sworn affidavits and expert witnesses.

The problem with such extended cases is that the legal fees may not be covered by the funds provided by the estate - assuming that they win an increased share at all.

This issue is reflected in the title of the report submitted to AIJA - "Bleak House Revisited? Disproportionality in Family Provision Estate Litigation in New South Wales and Victoria".

It is a reference to the Charles Dickens classic in which a convoluted selection of wills from a single benefactor seek to distribute an inheritance amongst several individuals.

The legal proceedings in the story took so long to reach a conclusion that many of the main characters in the novel had themselves passed away before they could receive a single penny.

While Victorian laws in the book have since been revised, Vines indicated that there was a common theme to be found, as the costs realised by bitter feuds could be as much as 150 per cent of the funds that were gained as a result.

However she did say that the emotional turmoil at losing a loved one possibly had an impact on the tenacity and duration of a particular dispute, causing brothers and sister to turn on each other.

Vines said: "This is probably simply an expression of the fact that sibling rivalry is a lifelong psychological construct which is hardly likely to melt away with ease."

She also said that many parties felt that they had "little personal risk" of paying court costs or legal fees - believing that the funds released from an estate would cover their needs - which also acted to spur their desire to enter into an extended dispute.

To help avoid this, Vines recommended that taking the time to explain a particular set of choices in a will to the individual recipients should be a core part of the estate planning process as it had the potential to increase understanding between the beneficiaries.

In addition, the professor pointed out that a "culture of mediation" was able to affect the amount of extended litigation and may be able to have an impact on the level of "disproportionate costs".