18/09/2015 9:07 AM AEST | Updated 15/07/2016 12:51 PM AEST

Where There's A Will There's A Way To Start A Family Dispute

When families fall out, all manner of age-old slights, jealousies and vendettas are keenly remembered. Some people who, for all intents and purposes, are successful, reasonable and well-adjusted, can turn into wildcats.

Edmonton, Alberta, Canada
Design Pics / Leah Warkentin via Getty Images
Edmonton, Alberta, Canada

Family will disputes come in a variety of forms. They range in size from the dispute over the estate of Lang Hancock to battles over dusty collections of family heirlooms cluttered in suburban pool rooms. One thing they have in common is that they are invariably distressing.

The intersection between family and money is a place which can reveal the very best -- but more often than not the very worst -- of our behaviour, and reveal deep truths about the human condition.

Laws and customs that apply to wills and estates can tell you a great deal about a society. For instance, the rule of primogeniture, that the first-born son inherits everything, was an integral part of medieval Europe and enabled lines of noble families to acquire vast estates. Meanwhile, disposed children entered the Church or sought their fortunes in the Americas. De Tocqueville argued that the abolition of primogeniture, and the resultant division of land, hastened the advance of democracy.

Australia and many other countries now have laws which recognise, subject to limited exceptions, that people should have the freedom to dispose of their property in the manner of their choosing, that this is a basic human right. But this freedom brings with it challenges.

As a lawyer I have acted in some bitterly contested family disputes. In my experience they can be the hardest fought and the most difficult to resolve, and estate disputes are among the worst of the lot.

On the whole the legal services sector is shrinking. But estate disputes run contrary to the trend and are a growth area. This is unsurprising. So often, these days, you read about soaring property values and falling job prospects. An increasing number of disillusioned people believe they have no realistic prospect of owning their own homes, or having enough money for retirement... without a decent inheritance.

Many estate disputes relate to the validity or otherwise of a will. In some instances the key question may be whether the person who made the will (the testator) has been the victim of undue influence. In other instances the question may be whether the testator had testamentary capacity: that is to say, had sufficient understanding of the effect of making a will. In our ageing population, there is a higher prevalence of dementia. But not all people suffering dementia lack testamentary capacity. It is a matter of degree. And it is a question on which a Court may require extensive expert evidence.

A salutory lesson in the complexities of this type of litigation is afforded by the Supreme Court of Victoria's decision regarding the estate of the late Betty Dyke. An elderly spinster who lived on a farm on the Mornington Peninsula, Betty had no siblings or children and her closest relatives were her cousins.

When she died, she left behind three wills. Under the earliest, she left most of her estate to various charities. Under the later wills, she left most of her estate to friends and neighbours who had cared for her in her old age. Little could she have known the trouble she would leave behind. The later wills were contested and the matter ended up the subject of a six-week trial in the Supreme Court, with a judgment over one hundred and eighty pages long, and legal costs estimated at several million dollars.

Another type of estate dispute relates to whether a testator has made adequate provision to those for whom he or she had a responsibility to make provision (which is a limitation on a testator's freedom). If not, an aggrieved person may bring a testator family maintenance claim. These so-called TFM claims are many and varied. They can become especially complicated when they involve ex-wives or ex-husbands, step-children, estranged family members or carers. And because legal costs in many instances can be drawn upon the estate, a contested TFM claim can severely deplete the assets otherwise available for deserving beneficiaries.

But there is always much more at stake than money. When families fall out, all manner of age-old slights, jealousies and vendettas are keenly remembered. Some people who, for all intents and purposes, are successful, reasonable and well-adjusted, can turn into wildcats. It makes you wonder if it is only their siblings or family who can set them off, or else whether their usual civility is just a veneer. Either way, it is an unfortunate state of affairs, because governments cannot legislate for minimum standards of decency.


John Tesarsch is the author of The Last Will and Testament of Henry Hoffman, which is published by Affirm Press.