August 24, 2023 • 33 mins
Contesting an estate can be a long and difficult road. In this episode of Law Matters, the team at Catherine Henry Lawyers looks at why people contest estates, when it’s legally valid for someone to dispute a will, and how best to navigate through the murky waters of wills and estates. Join Practice Leader of Relationship Law, Rob Dilley, in conversation with Jane Needham SC for this enlightening interview on contesting estates.
In this episode you’ll find out:
- Why clients seeking clear financial outcomes are the easier cases
- How emotions and family relationships can make contesting estates fraught with difficulties
- When and why collaborative process can be beneficial in disputes regarding wills and estates
Disclaimer
While this podcast is aimed to be informative, it is not intended to be a substitute for legal advice. You should see a solicitor for complete advice that relates directly to your situation.
For more information:
Find out more about wills and estates here.
If you have a legal issue and live in regional NSW you can find out more at Catherine Henry Lawyers, or call the team on 1800 874 949.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Catherine Henry (00:01):
Contesting an estate can be a long and
emotional process. And that'swhy it's so important to have
all the information before youstart. I'm Catherine Henry and
in this episode of Law Matterswith Catherine Henry Lawyers,
we're looking at the complexprocess of contesting an estate
with practice leader, RobDilley.
Rob Dilley (00:21):
Hi, I'm Rob Dilley, Senior Associate and practice
leader in relationship law atCatherine Henry Lawyers. If you
find yourself in a situationwhere you believe there's been
an injustice, it's good to havesomeone experienced in resolving
disputes on your side because agood dose of honest and reliable
feedback can save a lot of painin the future. And that's what
(00:43):
we're looking at, in today'sepisode of Law Matters; a bit of
honest and reliable feedbackaround the tricky area of
contesting an estate. And I'mvery glad to welcome someone who
has a long career in solvingvery difficult disputes, Jane
Needham SC . Jane is a seniorbarrister, and what we call in
(01:04):
legal land a senior counsel whoalso works as a mediator and a
collaborative practitioner. Janeis known for her work at the bar
in equity cases, that is casesinvolving disputes about such
things as wills, estates, issuessurrounding trusts, among other
things. In addition to herequity practice, she's worked on
(01:27):
royal commissions, inquests andinquiries. She's also known for
her work in the organisationsthat regulate barristers. She
was the president of New SouthWales Bar Association some years
ago, and also has workedtirelessly promoting issues
impacting on women lawyers. Asyou can see, Jane is
(01:47):
extraordinarily busy. So we arevery lucky that she has been
able and prepared to speak to ustoday about some of the issues
that come up when working oncases involving will disputes.
Jane Needham, welcome.
Jane Needham SC (02:01):
Thank you very much, Rob.
Rob Dilley (02:03):
Contesting or challenging estates can be
emotionally volatile as an areaof work. Do you find that in
general it's common for peopleto challenge or contest a will?
Jane Needham SC (02:14):
Well, I think in my line of work, I only see
the people who do challenge awill. And so my sense of that is
fairly skewed. But having beenthrough a couple of estate
administrations, both as anexecutor, and in my own family,
my feeling is that most peoplegenerally accept the terms of
(02:37):
the will. But the percentage ofpeople who do seek to challenge
it, embark on a very difficultand emotionally-laden journey.
Rob Dilley (02:45):
Okay, so there are some obvious reasons as to why
estates might be contested.Family tensions before and after
death or disappointedexpectations, or in the case of
blended families, where theoutcomes are not as simple as
the nuclear families. Are youfinding that this is a growth
area within the law?
Jane Needham SC (03:06):
Definitely. The Supreme Court has recently
reorganised its succession andfamily provision list. And the
judges are finding that there'san enormous amount of work,
there's something like 100 casesin the list every week. They're
not new cases but there arecases that have been actively
case managed. So it is a growingpart of the work of the Supreme
(03:30):
Court and the work of barristersand solicitors. And I think part
of that is the enormous growthin real estate property prices
since say, the last 30 years.Thirty years ago it was possible
to buy a house on a regularincome. Now, it is almost out of
(03:53):
reach of people on regularincomes, people working everyday
jobs, and that I think has madethe family house or if somebody
has a family house and a coupleof investment units, they're
worth multiple millions ofdollars, and it just becomes
the pot that people can haveaccess to that might change
(04:16):
their lives.
Another aspect of it is, ofcourse, not so much, just the
money and a lot of people comeand say it's not the money that
counts. It's their place in thefamily. It's the way that they
see themselves as a familymember. It's a way of working
out their relationship withtheir departed parent or spouse,
sometimes a child and it's a wayof trying to set in their minds
(04:41):
the story straight about theirpart in the family. So it can
be, 'I need more money' all theway up to 'I was very
disappointed with how my parentstreated me' and this is a way to
make it better and everything inbetween.
Rob Dilley (04:55):
Well, I know that when I've worked on matters
where a blended family isinvolved, there is a real sense
of, at least on the behalf ofsome of the children a sense of
disenfranchisement, because theblended family, the two parents
might have been together for avery long time. But then when
one of those parents passesaway, and leaves their house and
(05:19):
the bulk of their estate to theother parent, the children of
the parent that's passed feelvery upset about that. How
important is it to advise thosewho are often grief stricken,
sometimes very angry familymembers, before they go to legal
proceedings?
Jane Needham SC (05:36):
It's really important. And there are three
different kinds of ways ofworking out a dispute such as
this. The first is thetraditional way of just starting
proceedings and hitting someonewith a Statement of Claim or a
summons, and taking them tocourt. And that's really the
nuclear option. I sawOppenheimer on the weekend. So
(05:58):
I'd say that with a degree ofawe. The next way of doing it is
to do either a formal or aninformal mediation. And these
can go along with the courtproceedings, and almost every
succession matter, is nowrequired to go through a
mediation process through theSupreme Court. And the third way
is quite a new way of dealingwith it. And you mentioned in
(06:22):
the opening that I docollaborative process, and
that's a new way of resolvingproceedings, where the lawyers
work together, along with theparties to try and sort it out,
it's not adversarial. It's not amediation. But it's a process
whereby everyone collaborates inworking out what's in the
estate, what everyone needs, howthe needs can be met from the
(06:46):
estate, and plus it excludeslitigation as an option. You can
always go to litigationafterwards. But while you're
working collaborative process,you take away that litigation
option. And it's quite new inwills and estates, it's very
established in family law. Butthere's a number of
practitioners in Sydney who aretrying to bring collaborative
(07:09):
process into resolvingsuccession disputes in the same
way that family lawyers havebeen resolving family law
disputes for many years.
Rob Dilley (07:19):
Well, I practice in family law, and that's a large
part of my practice, andcollaborative lawyers are
servicing more and more, and Ithink it's a very intelligent
and appropriate way to deal withfamily disputes.
Jane Needham SC (07:35):
I'm a huge fan of that. I have to say, I've
only been trained in it fornow... I did the master class
this year. We're still trying toget a groundswell of solicitors
trained, because they're theones who see people right at the
outset, and can pick thedisputes that would be more
suitable to collaborativeprocess. But I would say that
(07:58):
almost all disputes go throughthe formal litigation process,
which is, of course, much moreemotionally difficult, and,
sadly, much more expensive.
Rob Dilley (08:09):
So this next question sort of rides on the
coat tails of that last answer,why do you think people do go
ahead and take action? And whatI'm looking for here is your
views on how emotionally fueledthese actions are.
Jane Needham SC (08:24):
I always ask people when I first see them,
and I should probably justexplain to people who may not be
trained lawyers, that abarrister is a bit like a
specialist advocacy consultant.Most of my clients are
solicitors, other lawyers whobring their clients, the regular
people into see me because thematter is going to court. So
(08:45):
proceedings may have alreadybeen started or people want to
know what kind of action theycan bring against an estate. So
I see people when they're rightat the beginning of that
process, and I always ask them,"What do you want out of this
process? What do you want to seeat the end of it?" And people
who say, "Well, I'd really likea deposit on a house" they're
(09:07):
actually easy people because...I'm sorry, the easy cases,
because the outcome that I canachieve is money from these
proceedings, but I've had somereally interesting answers. Some
people point to things liketheir mother giving their
sister-in-law her engagementring, and being fueled by a
(09:29):
sense of grief, which is notanything to do with the value of
the engagement ring. It's to dowith their place in the family.
Or another one I had was someonewhose father gave or left his
Kangaroo jersey, he played forAustralia at some point to a
different child. He alwaysthought he'd been promised that.
(09:52):
And often it is a profound senseof unfairness, say it's a very
large estate and we're seeingmore and more of these where
there was really significantwealth tied up in usually a
first or second generationbusiness operation. And there's,
as you said, maybe two sets offamilies, the children of the
(10:13):
first marriage, the children ofthe second marriage. And one of
those families is favoured quiteoften the second marriage
family. And the children of theother family, while they may be
provided for quite comfortablyby non-billionaire standards, or
non-millionaire standard, seewhat the other children have
(10:34):
got, and are fueled by thatsense of injustice.
And I think one way that a lotof these disputes can be if not
avoided, at least perhapsminimised is for people to be
very open with what they'redoing in their will when they do
come to make a will,particularly where there are a
(10:57):
lot of assets, and they're notjust leaving the family home
four ways or something likethat. Having a process where you
can talk about what's happeningand engage people in that. And
that's another thing that youcan do in collaborative process,
succession planning, is findingout where people sit in relation
(11:17):
to the assets, and how theparents or the family intends to
leave that. And it's somethingthat involves quite a deal of
planning and awareness.
And so often I have people... soI do a bit of succession
planning as well, people come inand they want to know what might
happen if they leave theirestate a particular way and how
(11:40):
do they avoid challenges. Andthey always say, "If I die" and
I always want to say, no ifabout it, let's plan for it.
Because it is going to happen.And I think there needs to be a
lot more of a discussion aroundassets or how assets are going
to be left after death, becausetelling people, "You'll be fine,
(12:01):
I'm going to look after you"creates an expectation in their
head, which is almost always notborne out by what they actually
get. So it's much better to beclear, I think.
Rob Dilley (12:12):
That suggestion of creating a kind of a compact, or
a broad understanding with thelarger family in succession
planning, is that a dangerousterritory to enter into?
Jane Needham SC (12:27):
It certainly can be. It's more common I find
in rural families, where thereis an expectation of the farm
being passed down to the farmerchildren. And in the past, it
was usually sons, but I've seenmore and more families where the
daughters are the ones who takeon the farming role, and the
(12:48):
sons go off and study somethingor live in the city. But it can
be very difficult. I've had anumber of cases where because of
the tensions between a parentand children and a parent and a
(13:09):
new de facto or proposed wife,or husband, they'd had a
discussion about that. And inone case, the relationship
actually broke up because thediscussions couldn't be
determined appropriately.Because there really are only
two ways that you cansatisfactorily not lock down
(13:35):
what's going to happen. One isthrough the Family Law process
where there's a bindingfinancial agreement, and you'd
be very familiar with that, Rob.And the other way is having a
family provision act release,where you give away your rights
to make a claim on the basisthat you get something either
now or in the will. So you agreein advance to what you're going
to get a new release yourrights. But both of those
(13:58):
involve a fairly high degree offormality. And in the family
provision side of things needsthe approval of the court. So
everyone needs to be completelyon board with this. And there
are of course cases in estatematters where there have been
binding financial agreementsthat have been set aside because
(14:21):
of the lack of really proper,independent legal advice at the
time.
Rob Dilley (14:26):
BFAs are notoriously difficult, both in the
preparation, but also for thefact that they are, as you've
just pointed out, often setaside for a range of reasons and
one of those can indeed beinsufficient legal advice,
because when the court is keptout of that decision making
(14:47):
process, it's up to the lawyersto make sure everything is
nailed down. I just want to moveon now to another question, and
this concerns protected estates.And I wanted to ask you about
when someone is no longercapable of looking after their
own assets in a protectedestate. Could you just outline
(15:08):
what are the main considerationsthat you see when you're looking
at a protected estate and theconsiderations that might need
to be unpacked for people?
Jane Needham SC (15:19):
Yes, it's a really difficult process. And
Justice Lindsay of the SupremeCourt has written some articles
on management of estates fromlife into death and pointing out
how it's an art, not necessarilytwo sections. So when you have
somebody who is elderly, andperhaps losing capacity, that's
(15:43):
the usual way, although otherpeople can lose capacity. People
have to start making decisionsfor them. And there needs to be
proper planning about that. Oneof the ways you can plan for
that is to talk to your parentor if you're an older person,
talk to your children about whois going to manage your estate
if and when you lose capacity.So you need two documents; an
(16:07):
enduring power of attorney andan enduring guardianship.
Guardianship makes decisionssuch as health decisions and
where to live. And power ofattorneys make financial
decisions. So if you have thoseset up, it should be a
reasonably clear process whogets to make the decisions
moving into a state where youdon't have capacity. But if you
(16:31):
don't have those, and you needthose documents, then you need
to go to the tribunal to get aguardianship order, or a
financial management order. Andagain, that's an expense and an
emotional aspect and can becontested. So you may end up in
Supreme Court fighting about whogets to make decisions for mum
in the nursing home. And that'snot fun for anyone.
(16:53):
If there's no will and it's notappropriate that they die
intestate, then you can ask thecourt to make a will for someone
who has not got capacity. Andthere might be a number of
reasons why such a decisionmight be made. One is where the
family dynamics is such that thedistribution on intestacy, where
(17:19):
it goes to say all the childrenin equal shares is not
appropriate. Or say someone islegally married, but the partner
left and the previous will lefteverything to the partner,
that's no longer appropriate. Sothe court can make a will
readjusting the shares. So allof these things need to be dealt
(17:42):
with carefully and with a lot ofdiscussion in the family but
quite often these actions aretaken almost as a strategic
move, or as a way of cutting outother people from decision
making processes. And again,talking if even if it's through
(18:04):
an informal mediation or afamily discussion with an expert
or everyone there with theirlawyers, all of these things can
actually remove rather thancreate antagonism and difficulty
for the family. Quite often, mumor dad are completely unaware of
what's going on with thesebattles, but people can get
(18:25):
very, very mired in them.
Rob Dilley (18:36):
I'm Rob Dilley, Senior Associate with Catherine
Henry Lawyers talking to JaneNeedham SC around contesting an
estate on this episode of LawMatters. Jane, what you need to
be able to prove to successfullycontest an estate claim or
challenge a will?
Jane Needham SC (18:57):
Well, there are two ways that you can contest an
estate. And generally, they fallinto two categories. One is
family provision where you'reseeking more money out of the
estate or some money out of theestate. And the other one is
where you're challenging thevalidity of the will. And I
might deal with the second onefirst, the validity claims are
(19:20):
usually that the deceased didn'thave capacity to make a will. So
you might have somebody who'sgot dementia or some other kind
of cognitive impairment making awill. And the question there is
you have to show whether theyunderstood what a will was,
whether they understood theclaims on their bounty, who were
the people who would naturallybe someone they'd leave money
(19:42):
to, and whether they had anydelusions which affected their
ability to make a will. Thisalso in that category, undue
influence if somebody was placedunder extreme pressure to make a
will, and a couple of othertechnical ways that it can be
set aside. But that deals withthe validity of the will. And if
(20:05):
you're successful in showingthat the person didn't have
capacity or was undulyinfluenced, that will goes away
and the previous will comes intocontention, or if there was no
previous will, the estate isadministered on intestacy. And
that's a statutory formulawhereby particular categories of
people, spouse, children, getparticular shares.
(20:27):
Family provision is where youaccept the validity of the will.
But you ask the court to adjustthe shares that the estate has
been administered, so that youare provided for properly and
adequately. And that means youneed to show firstly, that what
you have been given is notadequate for your proper
(20:50):
education, advancement in lifeand maintenance. And secondly,
that what you would spend it onputting this in variable term.
So what do you need and howwould you spend more money if
you got it? So if you go tocourt and say, "I don't have a
house of my own, if I had adeposit of this amount, I could
(21:11):
buy a house, which would suit myfamily needs." Or say, "I did
get a quarter share of theestate, but I'm very unwell and
all my siblings are much betteroff, and I should have more." So
you really need to put out acase for the terms of the will
being changed.
Rob Dilley (21:29):
Just before we move on, you mentioned a phrase a
moment ago that I think isprobably well known to a lot of
people 'undue influence.' AndI'm certainly seeing more
inquiries about this particularissue. And I might just ask you
to unpack undue influence andwhat might need to be shown in
Jane Needham SC (21:48):
Well, that's a very interesting question,
order to support such a claim?
because I think the tide isturning a little on undue
influence. It used to be thateveryone always pleaded it. But
it very rarely got up. There wasone case in, I think, the 1800s.
And another case recently, whereclaims of undue influence have
(22:11):
been successful. And the key isthe word undue you can influence
someone to make a will, you cansay every day, "Hey, Mom, have
you made a will leavingeverything to me?" And she'll
go, "Not yet darling." But aslong as she feels completely
free to make a will or to revokethat will, that influence is
fine. There's no harm insuggesting, or even taking
(22:35):
someone to a solicitor andsaying, "Here's my mom, she'd
like to make a will." But whenyou cross the line is when that
influence is undue. And insuccession law, the test has
normally been where the personfeels unable to do something
else. It's a form of coercion,almost.
(22:56):
And one of the things I'minterested in at the moment is
the crossover between coercivecontrol which as you know, has
recently been subject oflegislation in the criminal
sphere. And the ability to makea will, because I think there
are instances out there wherethe relation, not so much the
(23:17):
will itself is subject to undueinfluence, but the relationship
itself, and usually, it's thewoman in the relationship who
feels unable to assert her owneconomic power, how that
relationship impacts on themaking of the will. There's been
no cases on that. But I'm justreally interested to see how
that will play out.
Rob Dilley (23:37):
It's an extraordinarily difficult
threshold to reach, isn't it?Because it relies often on
digging into the history of arelationship and where a person
has made a will as testator andthey've now passed away. It
becomes almost impossible toprove undue influence on the
(23:58):
making of that will without thetestator being there to give
some sort of evidence.
Jane Needham SC (24:02):
Indeed. And where a will is made in front of
a solicitor and there is nosuggestion of influence at
making of the will, it's verydifficult to show what the
influences were on making thatwill. So it's really a difficult
(24:25):
field, but people particularlythey come in and they go, "She
would not have made this willunless she was unduly influenced
to make it." And quite often youneed to spend quite a bit of
time saying, "Well, that may bethe case. But it would be easier
to prove, for example, that thetestator didn't have capacity."
(24:47):
And the two are somewhat linkedbecause people who have lessened
capacity or they may not havelost enough not to be able to
make a will but they might havelost enough to resist being
influenced. And again, it's avery fine line.
Rob Dilley (25:04):
I'm sure we could talk at great length about this.
I have a case at the moment,which is right in the
crosshairs. But for our purposestoday, I might just move on. I
want to talk about timeframes.So are there different
timeframes for different typesof matters and what happens if
(25:27):
for some reason, someone can'tstart proceedings within the
required timeframes?
Jane Needham SC (25:32):
Yes, this is a difficulty because I'm talking,
of course, about New South Waleslaw. If you want to start a
family provision case, you needto do it within a year of death.
And quite often people aregreiving, they're upset, they
may not realise that what theyget from the estate is not
sufficient for their needs. Andthen they need to bring a claim
(25:54):
out of time. And you can bring aclaim out of time, but you need
the leaf of the court. And thecourt will look at a number of
things. Firstly, the reasons forextension of time. Did you get
legal advice? Did you protectyour own interests? Did you just
decide not to and then changeyour mind? Also, they'll look at
(26:14):
the length of time and whetherthe estate has been administered
so that people are beingactively...
Rob Dilley (26:22):
So there's been some interesting cases in this area
and particular Lodin and Lodinwhere the ex wife of a man who
had died without a will waslooking to receive part of his
$5 million estate that by lawhad been left to the daughter
that they both shared. It'sworth noting that they had been
separated for 25 years and thedivorce had gone through the
(26:44):
family court. Interestingly,first instance, a judge ordered
the ex partner to receive a lumpsum of $750,000. But that
decision was then appealed bythe daughter and the appeal was
allowed. In the end, it camedown to the fact that the former
spouse was not considered anatural object of testamentary
(27:04):
recognition. Is this an exampleof just how murky the waters can
get in this area?
Jane Needham SC (27:10):
Yes, the issue of ex spouses is interesting
because they are entitled tomake a claim under family
provision legislation, alongwith stepchildren, people who've
been in a close personalrelationship with the deceased
as long as they've beendependent upon them. So ex
(27:30):
spouses and what we might calldependents, including
grandchildren can make claims,but they need to show that there
are what's called factorswarranting the making of the
application. And one of theissues with this particular ex
wife was that after separation,she pretty much made it her
(27:51):
business to ruin the deceasedlife. He was a doctor and she
reported him to the MedicalComplaints board and really,
really made his life a misery.And generally with ex spouses,
if there's been a propertysettlement, as the Court of
Appeal said, that really takesyou out of the category of who
(28:13):
is an appropriate object oftestamentary recognition. That's
a fancy way of saying, who wouldthe community consider
appropriate to get money out ofthe estate, and that the Court
of Appeal found that she was notso entitled. And this can be the
case. Spouses, de fato spousesat death, and children have an
(28:36):
automatic right to make a claimthey don't have to show factors
warranting. But still wherepeople are significantly
estranged and generally speakingwhere the blame can be more put
on the applicant than thedeceased, then you might not get
into that category of peoplewhom the community would
(28:59):
consider that you should be leftsome more money. So your conduct
as well as their conduct is oneof the relevant factors that
court will take into account.And that's why these matters are
so emotionally overwhelmingbecause sometimes you're asked
to consider and be crossexamined on the whole of your
(29:21):
relationship with the deceasedand it's very hard to grieve the
loss of someone while you'restill in active litigation about
them.
It's a big ask of people, isn'tit?
It is and defendants are usuallythe person who the deceased has
chosen as their executor. Andquite often that's another
(29:42):
family member. Sometimes it's anindependent person, but quite
often it pits the former....thethe spouse against the children
of the first marriage or siblingagainst sibling. It can be very
fraught for that reason becauseeveryone has their own
experience they need to bring tobear on the evidence.
Rob Dilley (30:04):
Jane, we've covered a lot of ground here.
Jane Needham SC (30:09):
There's a lot to cover.
Rob Dilley (30:10):
Now for, the most difficult question of all, are
there any key takeaways thatyou'd like people to know other
than the obvious of no matterhow young and fit you are, make
a will?
Jane Needham SC (30:22):
Well, no matter how young and fit you are, also
make an enduring power ofattorney and an enduring
guardian. Because if you are,God forbid, the victim of a
traumatic brain injury, or yousay contract a disease which
makes it difficult for you tolook after yourself and your own
(30:43):
issues, you need somebodytrusted in there who can step in
and make decisions. And I wouldsuggest reviewing your will, and
the appointments under thosedocuments every five years,
because a lot can change in fiveyears. If there is a question of
contesting a will, if you'vebeen left without enough from an
(31:03):
estate, or you feel that thewill was not a valid will, then
I would absolutely say let's seeif there's something you can do,
which does not involvelitigation to start with. I'm a
bit talking against my owninterest, because I work as a
litigator. But there is so manycases out there where you look
(31:26):
at them and you just thinkright, "If the people had just
taken a different route right atthe beginning, and a
constructive rather than adestructive approach, things
might have been very different."
Rob Dilley (31:40):
It's often really difficult to persuade people
that cooperation, collaboration,is the better course, rather
than competition and litigation,because our society is so
heavily constructed aroundcompetitiveness.
Jane Needham SC (31:56):
It is. I started out by saying that an
answer to one of your firstquestions that my own
experiences of being an executorhave been very smooth, and I
think that's because they wereboth in estates where people
were able to talk to each other.And I think having an
understanding of what you'reentitled to under a will, or
(32:20):
telling your children or yourspouse how you're going to do it
and discussing it at that point,even though it feels really hard
to do because we don't likespeaking about the worst. I
think it's a really constructivething to do, just to keep
expectations under control.
Rob Dilley (32:37):
Jane, I can't thank you enough for your time today.
It's been a great pleasure JaneNeedham SC. Thank you very much.
Catherine Henry (32:53):
Thanks to practice leader Rob Dilley for
hosting this episode of LawMatters with Catherine Henry
Lawyers. I'm Catherine Henry.And if you're thinking of
contesting an estate or wouldlike more information about your
options, please do get in touch.My team will be able to guide
you through the process and helpyou decide what will be best for
your circumstances. If you'reenjoying this podcast, make sure
(33:15):
you subscribe wherever youlisten to your podcasts to stay
up to date with all the latestepisodes. This podcast was
produced by Pod and PenProductions.
Contesting an estate can be a long and
emotional process. And that'swhy it's so important to have
all the information before youstart. I'm Catherine Henry and
in this episode of Law Matterswith Catherine Henry Lawyers,
we're looking at the complexprocess of contesting an estate
with practice leader, RobDilley.
Rob Dilley (00:21):
Hi, I'm Rob Dilley, Senior Associate and practice
leader in relationship law atCatherine Henry Lawyers. If you
find yourself in a situationwhere you believe there's been
an injustice, it's good to havesomeone experienced in resolving
disputes on your side because agood dose of honest and reliable
feedback can save a lot of painin the future. And that's what
(00:43):
we're looking at, in today'sepisode of Law Matters; a bit of
honest and reliable feedbackaround the tricky area of
contesting an estate. And I'mvery glad to welcome someone who
has a long career in solvingvery difficult disputes, Jane
Needham SC . Jane is a seniorbarrister, and what we call in
(01:04):
legal land a senior counsel whoalso works as a mediator and a
collaborative practitioner. Janeis known for her work at the bar
in equity cases, that is casesinvolving disputes about such
things as wills, estates, issuessurrounding trusts, among other
things. In addition to herequity practice, she's worked on
(01:27):
royal commissions, inquests andinquiries. She's also known for
her work in the organisationsthat regulate barristers. She
was the president of New SouthWales Bar Association some years
ago, and also has workedtirelessly promoting issues
impacting on women lawyers. Asyou can see, Jane is
(01:47):
extraordinarily busy. So we arevery lucky that she has been
able and prepared to speak to ustoday about some of the issues
that come up when working oncases involving will disputes.
Jane Needham, welcome.
Jane Needham SC (02:01):
Thank you very much, Rob.
Rob Dilley (02:03):
Contesting or challenging estates can be
emotionally volatile as an areaof work. Do you find that in
general it's common for peopleto challenge or contest a will?
Jane Needham SC (02:14):
Well, I think in my line of work, I only see
the people who do challenge awill. And so my sense of that is
fairly skewed. But having beenthrough a couple of estate
administrations, both as anexecutor, and in my own family,
my feeling is that most peoplegenerally accept the terms of
(02:37):
the will. But the percentage ofpeople who do seek to challenge
it, embark on a very difficultand emotionally-laden journey.
Rob Dilley (02:45):
Okay, so there are some obvious reasons as to why
estates might be contested.Family tensions before and after
death or disappointedexpectations, or in the case of
blended families, where theoutcomes are not as simple as
the nuclear families. Are youfinding that this is a growth
area within the law?
Jane Needham SC (03:06):
Definitely. The Supreme Court has recently
reorganised its succession andfamily provision list. And the
judges are finding that there'san enormous amount of work,
there's something like 100 casesin the list every week. They're
not new cases but there arecases that have been actively
case managed. So it is a growingpart of the work of the Supreme
(03:30):
Court and the work of barristersand solicitors. And I think part
of that is the enormous growthin real estate property prices
since say, the last 30 years.Thirty years ago it was possible
to buy a house on a regularincome. Now, it is almost out of
(03:53):
reach of people on regularincomes, people working everyday
jobs, and that I think has madethe family house or if somebody
has a family house and a coupleof investment units, they're
worth multiple millions ofdollars, and it just becomes
the pot that people can haveaccess to that might change
(04:16):
their lives.
Another aspect of it is, ofcourse, not so much, just the
money and a lot of people comeand say it's not the money that
counts. It's their place in thefamily. It's the way that they
see themselves as a familymember. It's a way of working
out their relationship withtheir departed parent or spouse,
sometimes a child and it's a wayof trying to set in their minds
(04:41):
the story straight about theirpart in the family. So it can
be, 'I need more money' all theway up to 'I was very
disappointed with how my parentstreated me' and this is a way to
make it better and everything inbetween.
Rob Dilley (04:55):
Well, I know that when I've worked on matters
where a blended family isinvolved, there is a real sense
of, at least on the behalf ofsome of the children a sense of
disenfranchisement, because theblended family, the two parents
might have been together for avery long time. But then when
one of those parents passesaway, and leaves their house and
(05:19):
the bulk of their estate to theother parent, the children of
the parent that's passed feelvery upset about that. How
important is it to advise thosewho are often grief stricken,
sometimes very angry familymembers, before they go to legal
proceedings?
Jane Needham SC (05:36):
It's really important. And there are three
different kinds of ways ofworking out a dispute such as
this. The first is thetraditional way of just starting
proceedings and hitting someonewith a Statement of Claim or a
summons, and taking them tocourt. And that's really the
nuclear option. I sawOppenheimer on the weekend. So
(05:58):
I'd say that with a degree ofawe. The next way of doing it is
to do either a formal or aninformal mediation. And these
can go along with the courtproceedings, and almost every
succession matter, is nowrequired to go through a
mediation process through theSupreme Court. And the third way
is quite a new way of dealingwith it. And you mentioned in
(06:22):
the opening that I docollaborative process, and
that's a new way of resolvingproceedings, where the lawyers
work together, along with theparties to try and sort it out,
it's not adversarial. It's not amediation. But it's a process
whereby everyone collaborates inworking out what's in the
estate, what everyone needs, howthe needs can be met from the
(06:46):
estate, and plus it excludeslitigation as an option. You can
always go to litigationafterwards. But while you're
working collaborative process,you take away that litigation
option. And it's quite new inwills and estates, it's very
established in family law. Butthere's a number of
practitioners in Sydney who aretrying to bring collaborative
(07:09):
process into resolvingsuccession disputes in the same
way that family lawyers havebeen resolving family law
disputes for many years.
Rob Dilley (07:19):
Well, I practice in family law, and that's a large
part of my practice, andcollaborative lawyers are
servicing more and more, and Ithink it's a very intelligent
and appropriate way to deal withfamily disputes.
Jane Needham SC (07:35):
I'm a huge fan of that. I have to say, I've
only been trained in it fornow... I did the master class
this year. We're still trying toget a groundswell of solicitors
trained, because they're theones who see people right at the
outset, and can pick thedisputes that would be more
suitable to collaborativeprocess. But I would say that
(07:58):
almost all disputes go throughthe formal litigation process,
which is, of course, much moreemotionally difficult, and,
sadly, much more expensive.
Rob Dilley (08:09):
So this next question sort of rides on the
coat tails of that last answer,why do you think people do go
ahead and take action? And whatI'm looking for here is your
views on how emotionally fueledthese actions are.
Jane Needham SC (08:24):
I always ask people when I first see them,
and I should probably justexplain to people who may not be
trained lawyers, that abarrister is a bit like a
specialist advocacy consultant.Most of my clients are
solicitors, other lawyers whobring their clients, the regular
people into see me because thematter is going to court. So
(08:45):
proceedings may have alreadybeen started or people want to
know what kind of action theycan bring against an estate. So
I see people when they're rightat the beginning of that
process, and I always ask them,"What do you want out of this
process? What do you want to seeat the end of it?" And people
who say, "Well, I'd really likea deposit on a house" they're
(09:07):
actually easy people because...I'm sorry, the easy cases,
because the outcome that I canachieve is money from these
proceedings, but I've had somereally interesting answers. Some
people point to things liketheir mother giving their
sister-in-law her engagementring, and being fueled by a
(09:29):
sense of grief, which is notanything to do with the value of
the engagement ring. It's to dowith their place in the family.
Or another one I had was someonewhose father gave or left his
Kangaroo jersey, he played forAustralia at some point to a
different child. He alwaysthought he'd been promised that.
(09:52):
And often it is a profound senseof unfairness, say it's a very
large estate and we're seeingmore and more of these where
there was really significantwealth tied up in usually a
first or second generationbusiness operation. And there's,
as you said, maybe two sets offamilies, the children of the
(10:13):
first marriage, the children ofthe second marriage. And one of
those families is favoured quiteoften the second marriage
family. And the children of theother family, while they may be
provided for quite comfortablyby non-billionaire standards, or
non-millionaire standard, seewhat the other children have
(10:34):
got, and are fueled by thatsense of injustice.
And I think one way that a lotof these disputes can be if not
avoided, at least perhapsminimised is for people to be
very open with what they'redoing in their will when they do
come to make a will,particularly where there are a
(10:57):
lot of assets, and they're notjust leaving the family home
four ways or something likethat. Having a process where you
can talk about what's happeningand engage people in that. And
that's another thing that youcan do in collaborative process,
succession planning, is findingout where people sit in relation
(11:17):
to the assets, and how theparents or the family intends to
leave that. And it's somethingthat involves quite a deal of
planning and awareness.
And so often I have people... soI do a bit of succession
planning as well, people come inand they want to know what might
happen if they leave theirestate a particular way and how
(11:40):
do they avoid challenges. Andthey always say, "If I die" and
I always want to say, no ifabout it, let's plan for it.
Because it is going to happen.And I think there needs to be a
lot more of a discussion aroundassets or how assets are going
to be left after death, becausetelling people, "You'll be fine,
(12:01):
I'm going to look after you"creates an expectation in their
head, which is almost always notborne out by what they actually
get. So it's much better to beclear, I think.
Rob Dilley (12:12):
That suggestion of creating a kind of a compact, or
a broad understanding with thelarger family in succession
planning, is that a dangerousterritory to enter into?
Jane Needham SC (12:27):
It certainly can be. It's more common I find
in rural families, where thereis an expectation of the farm
being passed down to the farmerchildren. And in the past, it
was usually sons, but I've seenmore and more families where the
daughters are the ones who takeon the farming role, and the
(12:48):
sons go off and study somethingor live in the city. But it can
be very difficult. I've had anumber of cases where because of
the tensions between a parentand children and a parent and a
(13:09):
new de facto or proposed wife,or husband, they'd had a
discussion about that. And inone case, the relationship
actually broke up because thediscussions couldn't be
determined appropriately.Because there really are only
two ways that you cansatisfactorily not lock down
(13:35):
what's going to happen. One isthrough the Family Law process
where there's a bindingfinancial agreement, and you'd
be very familiar with that, Rob.And the other way is having a
family provision act release,where you give away your rights
to make a claim on the basisthat you get something either
now or in the will. So you agreein advance to what you're going
to get a new release yourrights. But both of those
(13:58):
involve a fairly high degree offormality. And in the family
provision side of things needsthe approval of the court. So
everyone needs to be completelyon board with this. And there
are of course cases in estatematters where there have been
binding financial agreementsthat have been set aside because
(14:21):
of the lack of really proper,independent legal advice at the
time.
Rob Dilley (14:26):
BFAs are notoriously difficult, both in the
preparation, but also for thefact that they are, as you've
just pointed out, often setaside for a range of reasons and
one of those can indeed beinsufficient legal advice,
because when the court is keptout of that decision making
(14:47):
process, it's up to the lawyersto make sure everything is
nailed down. I just want to moveon now to another question, and
this concerns protected estates.And I wanted to ask you about
when someone is no longercapable of looking after their
own assets in a protectedestate. Could you just outline
(15:08):
what are the main considerationsthat you see when you're looking
at a protected estate and theconsiderations that might need
to be unpacked for people?
Jane Needham SC (15:19):
Yes, it's a really difficult process. And
Justice Lindsay of the SupremeCourt has written some articles
on management of estates fromlife into death and pointing out
how it's an art, not necessarilytwo sections. So when you have
somebody who is elderly, andperhaps losing capacity, that's
(15:43):
the usual way, although otherpeople can lose capacity. People
have to start making decisionsfor them. And there needs to be
proper planning about that. Oneof the ways you can plan for
that is to talk to your parentor if you're an older person,
talk to your children about whois going to manage your estate
if and when you lose capacity.So you need two documents; an
(16:07):
enduring power of attorney andan enduring guardianship.
Guardianship makes decisionssuch as health decisions and
where to live. And power ofattorneys make financial
decisions. So if you have thoseset up, it should be a
reasonably clear process whogets to make the decisions
moving into a state where youdon't have capacity. But if you
(16:31):
don't have those, and you needthose documents, then you need
to go to the tribunal to get aguardianship order, or a
financial management order. Andagain, that's an expense and an
emotional aspect and can becontested. So you may end up in
Supreme Court fighting about whogets to make decisions for mum
in the nursing home. And that'snot fun for anyone.
(16:53):
If there's no will and it's notappropriate that they die
intestate, then you can ask thecourt to make a will for someone
who has not got capacity. Andthere might be a number of
reasons why such a decisionmight be made. One is where the
family dynamics is such that thedistribution on intestacy, where
(17:19):
it goes to say all the childrenin equal shares is not
appropriate. Or say someone islegally married, but the partner
left and the previous will lefteverything to the partner,
that's no longer appropriate. Sothe court can make a will
readjusting the shares. So allof these things need to be dealt
(17:42):
with carefully and with a lot ofdiscussion in the family but
quite often these actions aretaken almost as a strategic
move, or as a way of cutting outother people from decision
making processes. And again,talking if even if it's through
(18:04):
an informal mediation or afamily discussion with an expert
or everyone there with theirlawyers, all of these things can
actually remove rather thancreate antagonism and difficulty
for the family. Quite often, mumor dad are completely unaware of
what's going on with thesebattles, but people can get
(18:25):
very, very mired in them.
Rob Dilley (18:36):
I'm Rob Dilley, Senior Associate with Catherine
Henry Lawyers talking to JaneNeedham SC around contesting an
estate on this episode of LawMatters. Jane, what you need to
be able to prove to successfullycontest an estate claim or
challenge a will?
Jane Needham SC (18:57):
Well, there are two ways that you can contest an
estate. And generally, they fallinto two categories. One is
family provision where you'reseeking more money out of the
estate or some money out of theestate. And the other one is
where you're challenging thevalidity of the will. And I
might deal with the second onefirst, the validity claims are
(19:20):
usually that the deceased didn'thave capacity to make a will. So
you might have somebody who'sgot dementia or some other kind
of cognitive impairment making awill. And the question there is
you have to show whether theyunderstood what a will was,
whether they understood theclaims on their bounty, who were
the people who would naturallybe someone they'd leave money
(19:42):
to, and whether they had anydelusions which affected their
ability to make a will. Thisalso in that category, undue
influence if somebody was placedunder extreme pressure to make a
will, and a couple of othertechnical ways that it can be
set aside. But that deals withthe validity of the will. And if
(20:05):
you're successful in showingthat the person didn't have
capacity or was undulyinfluenced, that will goes away
and the previous will comes intocontention, or if there was no
previous will, the estate isadministered on intestacy. And
that's a statutory formulawhereby particular categories of
people, spouse, children, getparticular shares.
(20:27):
Family provision is where youaccept the validity of the will.
But you ask the court to adjustthe shares that the estate has
been administered, so that youare provided for properly and
adequately. And that means youneed to show firstly, that what
you have been given is notadequate for your proper
(20:50):
education, advancement in lifeand maintenance. And secondly,
that what you would spend it onputting this in variable term.
So what do you need and howwould you spend more money if
you got it? So if you go tocourt and say, "I don't have a
house of my own, if I had adeposit of this amount, I could
(21:11):
buy a house, which would suit myfamily needs." Or say, "I did
get a quarter share of theestate, but I'm very unwell and
all my siblings are much betteroff, and I should have more." So
you really need to put out acase for the terms of the will
being changed.
Rob Dilley (21:29):
Just before we move on, you mentioned a phrase a
moment ago that I think isprobably well known to a lot of
people 'undue influence.' AndI'm certainly seeing more
inquiries about this particularissue. And I might just ask you
to unpack undue influence andwhat might need to be shown in
Jane Needham SC (21:48):
Well, that's a very interesting question,
order to support such a claim?
because I think the tide isturning a little on undue
influence. It used to be thateveryone always pleaded it. But
it very rarely got up. There wasone case in, I think, the 1800s.
And another case recently, whereclaims of undue influence have
(22:11):
been successful. And the key isthe word undue you can influence
someone to make a will, you cansay every day, "Hey, Mom, have
you made a will leavingeverything to me?" And she'll
go, "Not yet darling." But aslong as she feels completely
free to make a will or to revokethat will, that influence is
fine. There's no harm insuggesting, or even taking
(22:35):
someone to a solicitor andsaying, "Here's my mom, she'd
like to make a will." But whenyou cross the line is when that
influence is undue. And insuccession law, the test has
normally been where the personfeels unable to do something
else. It's a form of coercion,almost.
(22:56):
And one of the things I'minterested in at the moment is
the crossover between coercivecontrol which as you know, has
recently been subject oflegislation in the criminal
sphere. And the ability to makea will, because I think there
are instances out there wherethe relation, not so much the
(23:17):
will itself is subject to undueinfluence, but the relationship
itself, and usually, it's thewoman in the relationship who
feels unable to assert her owneconomic power, how that
relationship impacts on themaking of the will. There's been
no cases on that. But I'm justreally interested to see how
that will play out.
Rob Dilley (23:37):
It's an extraordinarily difficult
threshold to reach, isn't it?Because it relies often on
digging into the history of arelationship and where a person
has made a will as testator andthey've now passed away. It
becomes almost impossible toprove undue influence on the
(23:58):
making of that will without thetestator being there to give
some sort of evidence.
Jane Needham SC (24:02):
Indeed. And where a will is made in front of
a solicitor and there is nosuggestion of influence at
making of the will, it's verydifficult to show what the
influences were on making thatwill. So it's really a difficult
(24:25):
field, but people particularlythey come in and they go, "She
would not have made this willunless she was unduly influenced
to make it." And quite often youneed to spend quite a bit of
time saying, "Well, that may bethe case. But it would be easier
to prove, for example, that thetestator didn't have capacity."
(24:47):
And the two are somewhat linkedbecause people who have lessened
capacity or they may not havelost enough not to be able to
make a will but they might havelost enough to resist being
influenced. And again, it's avery fine line.
Rob Dilley (25:04):
I'm sure we could talk at great length about this.
I have a case at the moment,which is right in the
crosshairs. But for our purposestoday, I might just move on. I
want to talk about timeframes.So are there different
timeframes for different typesof matters and what happens if
(25:27):
for some reason, someone can'tstart proceedings within the
required timeframes?
Jane Needham SC (25:32):
Yes, this is a difficulty because I'm talking,
of course, about New South Waleslaw. If you want to start a
family provision case, you needto do it within a year of death.
And quite often people aregreiving, they're upset, they
may not realise that what theyget from the estate is not
sufficient for their needs. Andthen they need to bring a claim
(25:54):
out of time. And you can bring aclaim out of time, but you need
the leaf of the court. And thecourt will look at a number of
things. Firstly, the reasons forextension of time. Did you get
legal advice? Did you protectyour own interests? Did you just
decide not to and then changeyour mind? Also, they'll look at
(26:14):
the length of time and whetherthe estate has been administered
so that people are beingactively...
Rob Dilley (26:22):
So there's been some interesting cases in this area
and particular Lodin and Lodinwhere the ex wife of a man who
had died without a will waslooking to receive part of his
$5 million estate that by lawhad been left to the daughter
that they both shared. It'sworth noting that they had been
separated for 25 years and thedivorce had gone through the
(26:44):
family court. Interestingly,first instance, a judge ordered
the ex partner to receive a lumpsum of $750,000. But that
decision was then appealed bythe daughter and the appeal was
allowed. In the end, it camedown to the fact that the former
spouse was not considered anatural object of testamentary
(27:04):
recognition. Is this an exampleof just how murky the waters can
get in this area?
Jane Needham SC (27:10):
Yes, the issue of ex spouses is interesting
because they are entitled tomake a claim under family
provision legislation, alongwith stepchildren, people who've
been in a close personalrelationship with the deceased
as long as they've beendependent upon them. So ex
(27:30):
spouses and what we might calldependents, including
grandchildren can make claims,but they need to show that there
are what's called factorswarranting the making of the
application. And one of theissues with this particular ex
wife was that after separation,she pretty much made it her
(27:51):
business to ruin the deceasedlife. He was a doctor and she
reported him to the MedicalComplaints board and really,
really made his life a misery.And generally with ex spouses,
if there's been a propertysettlement, as the Court of
Appeal said, that really takesyou out of the category of who
(28:13):
is an appropriate object oftestamentary recognition. That's
a fancy way of saying, who wouldthe community consider
appropriate to get money out ofthe estate, and that the Court
of Appeal found that she was notso entitled. And this can be the
case. Spouses, de fato spousesat death, and children have an
(28:36):
automatic right to make a claimthey don't have to show factors
warranting. But still wherepeople are significantly
estranged and generally speakingwhere the blame can be more put
on the applicant than thedeceased, then you might not get
into that category of peoplewhom the community would
(28:59):
consider that you should be leftsome more money. So your conduct
as well as their conduct is oneof the relevant factors that
court will take into account.And that's why these matters are
so emotionally overwhelmingbecause sometimes you're asked
to consider and be crossexamined on the whole of your
(29:21):
relationship with the deceasedand it's very hard to grieve the
loss of someone while you'restill in active litigation about
them.
It's a big ask of people, isn'tit?
It is and defendants are usuallythe person who the deceased has
chosen as their executor. Andquite often that's another
(29:42):
family member. Sometimes it's anindependent person, but quite
often it pits the former....thethe spouse against the children
of the first marriage or siblingagainst sibling. It can be very
fraught for that reason becauseeveryone has their own
experience they need to bring tobear on the evidence.
Rob Dilley (30:04):
Jane, we've covered a lot of ground here.
Jane Needham SC (30:09):
There's a lot to cover.
Rob Dilley (30:10):
Now for, the most difficult question of all, are
there any key takeaways thatyou'd like people to know other
than the obvious of no matterhow young and fit you are, make
a will?
Jane Needham SC (30:22):
Well, no matter how young and fit you are, also
make an enduring power ofattorney and an enduring
guardian. Because if you are,God forbid, the victim of a
traumatic brain injury, or yousay contract a disease which
makes it difficult for you tolook after yourself and your own
(30:43):
issues, you need somebodytrusted in there who can step in
and make decisions. And I wouldsuggest reviewing your will, and
the appointments under thosedocuments every five years,
because a lot can change in fiveyears. If there is a question of
contesting a will, if you'vebeen left without enough from an
(31:03):
estate, or you feel that thewill was not a valid will, then
I would absolutely say let's seeif there's something you can do,
which does not involvelitigation to start with. I'm a
bit talking against my owninterest, because I work as a
litigator. But there is so manycases out there where you look
(31:26):
at them and you just thinkright, "If the people had just
taken a different route right atthe beginning, and a
constructive rather than adestructive approach, things
might have been very different."
Rob Dilley (31:40):
It's often really difficult to persuade people
that cooperation, collaboration,is the better course, rather
than competition and litigation,because our society is so
heavily constructed aroundcompetitiveness.
Jane Needham SC (31:56):
It is. I started out by saying that an
answer to one of your firstquestions that my own
experiences of being an executorhave been very smooth, and I
think that's because they wereboth in estates where people
were able to talk to each other.And I think having an
understanding of what you'reentitled to under a will, or
(32:20):
telling your children or yourspouse how you're going to do it
and discussing it at that point,even though it feels really hard
to do because we don't likespeaking about the worst. I
think it's a really constructivething to do, just to keep
expectations under control.
Rob Dilley (32:37):
Jane, I can't thank you enough for your time today.
It's been a great pleasure JaneNeedham SC. Thank you very much.
Catherine Henry (32:53):
Thanks to practice leader Rob Dilley for
hosting this episode of LawMatters with Catherine Henry
Lawyers. I'm Catherine Henry.And if you're thinking of
contesting an estate or wouldlike more information about your
options, please do get in touch.My team will be able to guide
you through the process and helpyou decide what will be best for
your circumstances. If you'reenjoying this podcast, make sure
(33:15):
you subscribe wherever youlisten to your podcasts to stay
up to date with all the latestepisodes. This podcast was
produced by Pod and PenProductions.
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!