The death of a loved one is difficult enough without the added strain of a legal dispute. Unfortunately, estate disagreements are more common than many people realise. From sibling tensions over property to disputes about who should benefit, probate matters can quickly escalate.
In our experience, these disputes often stem from long-standing family dynamics. However, ambiguity, or the complete absence, of a Will significantly increases the likelihood of conflict.
Understanding the probate process and the common grounds for disputes can help reduce confusion and mitigate risk.
What Is Probate?
Probate is the legal process that make sure a person’s assets are distributed appropriately after they die.
If there’s a valid Will, the executor (who is named in the Will) applies for a grant of probate, which gives them legal authority to manage and distribute the estate as directed.
If there’s no Will, the process is a bit different. A family member or other eligible person can apply for something called letters of administration, which allows them to act as the estate’s administrator.
In this case, the estate is distributed according to intestacy laws. These are legal rules that determine who gets what when no Will exists.
Whether acting as executor or administrator, the role involves:
- Identifying and valuing assets
- Paying any debts or taxes
- Distributing what’s left according to the Will or legal guidelines
Common Causes of Probate Disputes
Despite best intentions, the probate process can become contested, which is why people often choose to engage a reputable probate lawyer.
Here are the most common reasons we see families end up disagreeing over probate:
1. Contesting the Will
This happens when someone challenges the validity of a Will.
Common grounds include:
- Mental incapacity. The deceased may not have fully understood what they were doing when they made the Will.
- Undue influence. Someone may have pressured or manipulated the deceased into changing their Will.
Fraud or forgery. If a Will was faked, it obviously has no legal standing. - Improper execution. Wills must meet certain legal requirements, such as being signed and witnessed correctly.
2. Executor Misconduct or Mismanagement
Executors carry significant legal duties. If beneficiaries feel they aren’t handling their duties properly, this can cause tensions.
We often see disagreements when executors mismanage estate funds, cause long delays in distributing assets, or fail to communicate or act transparently.
3. Family Provision Claims
In many places, family members can challenge a Will if they feel they’ve been unfairly left out or inadequately provided for.
Key individuals who can make a claim:
- Spouse or domestic partner. The deceased’s current spouse or domestic partner.
- Former spouse or domestic partner. If there was no valid financial agreement under the Family Law Act 1975 (Cth).
- Child of the deceased. The deceased’s natural or adopted child.
- Step-child. Under specific circumstances outlined in the Act.
- Grandchild. If their parent (the deceased’s child) died before the deceased.
- Parents and siblings. If they can demonstrate that they cared for, or contributed to the maintenance of, the deceased during their lifetime.
- Dependent individuals. A person who was wholly or partly dependent on the deceased and a member of the deceased’s household.
Note: The Act also allows for claims by other individuals if they can demonstrate a close personal relationship with the deceased.
The court has discretion to adjust the distribution to ensure fairness, even if it goes against the Will.
4. Confusion Around Assets
Even with a valid Will, if it’s not crystal clear who gets what, there are likely to be disagreements.
We’ve seen this happen when the Will contains vague or conflicting instructions. In our experience, there is also often confusion over jointly owned property or superannuation, which technically don’t form part of the estate.
5. No Will (Intestacy)
When someone dies without a Will, the estate is divided according to strict legal rules. We’re aware that this often doesn’t reflect the deceased’s actual wishes.
Disputes can start over who ought to act as the administrator and escalate with competing claims from various relatives. We find that this is most common in complex family structures (like blended families).
Famous Probate Disputes in History
Probate conflicts aren’t new. Some historic cases gained significant public attention at the time:
- The Howland Will Forgery Trial (1868) – A court used mathematics to uncover forged signatures in a contested will.
- The Swynfen Will Case (1856–64) – A long legal battle that raised ethical questions that are still relevant today about legal representation and fees.
- The Roupell Case (1862) – A notorious and complicated example of estate fraud involving forged documents and family deception.
They actually make for interesting reading now, although I imagine they would have been stressful for the participants.
We understand that the probate process can be a source of stress and conflict. Understanding common issues and taking steps to prevent them can make a real difference, whether you’re making a Will or executing one.
When disagreements do arise, having the support of experienced legal professionals can help protect your interests, resolve matters more efficiently and reduce the emotional and financial toll on everyone involved.
Key takeaways
- Probate is the court order to administering a deceased person’s estate, through a Will
- Common disputes involve Will challenges, executor conduct, family provision claims, asset confusion, and intestacy.
- Legal guidance can help safeguard your interests and reduce the burden during an already difficult time.
Author: Nick McCabe is a barrister and solicitor with over 24 years’ experience in corporate, estate, and family law. Known for his practical advice and strong advocacy, he regularly appears in South Australia’s courts and is committed to helping clients resolve disputes efficiently.