Wills & Estates Disputes

Aitken Partners has a dedicated and experienced Wills & Estates team - including two Accredited Specialists - which can advise and assist in all types of Wills and Estate Disputes.

We are able to provide free no-obligation initial telephone advice on your particular situation, up to a maximum of 30 minutes, email wills@aitken.com.au now to make an appointment. We also offer a range of flexible billing arrangements suited to your needs. 

 

Will Disputes FAQs

Can a Will be challenged or contested?

There are two main categories under which a Will may be challenged:

  • Challenging the validity of the Will itself; or
  • Contesting a valid Will on the basis that the distribution under the Will does not adequately provide for the claimant. This is commonly known as a “Part IV claim”, “family provision claim” or “testator’s family maintenance claim”.

Can an executor be removed?

An executor may be removed in situations where they are unfit or incapable of continuing in their role, for example where:

  • The executor has engaged in misconduct in administering the estate;
  • The executor has caused unreasonable delay or is neglecting their duties;
  • The executor has a conflict of interest (for example where they deny a debt to the estate);
  • The executor is bankrupt or mentally ill; or
  • Two or more co-executors cannot work together effectively due to disagreements about the administration of the estate.

Can money taken from the deceased by a beneficiary or other person be recovered?

Action may be taken to recover money misappropriated from a deceased person during their life, without the deceased’s knowledge or consent. Upon consultation we will be able to advise you in more detail on the evidence required to prove the misappropriation and to recover the funds.

Can transactions made by the deceased during their life be reversed?

Sometimes a deceased person will have transferred significant funds or property to another person during their life, for no consideration. Usually a person is entitled to make any transactions they wish during their lifetime, unless there was lack of capacity, undue influence or fraud. In these circumstances the transaction may be able to be challenged. Aitken Partners are able to advise you on whether a particular transaction may be challenged and the evidence required.

What if I have contributed to assets in the deceased’s estate?

If you have made significant contributions to the deceased’s assets you may be able to claim an equitable interest in the property pursuant to a constructive or resulting trust. Aitken Partners will be able to advise you on the merits of such a claim, having regard to your specific situation. 

What if the Will is unclear, uncertain or ambiguous?

If the Will is unclear, uncertain or ambiguous, an application may be made to the Court for a judge to decide the proper construction of the Will, and if necessary, rectify the ambiguity. The application may be made by the executor, or any beneficiary affected by the ambiguity.