The Greedy Relative: How to Fight an Inheritance Claim


Scenario:

  • Bob and Joe are siblings.

  • Bob had close control/influence over Dad’s financial affairs in the later stages of life.

  • Bob interferes in the family company and trusts prior to Dad’s death.

  • Bob may also have received substantial property from Dad when he was alive.

  • Dad executes a new Will at a time of deteriorating health.

  • Dad dies and the new Will substantially benefits Bob to the detriment of Joe.​

The Nature of the Problem:

  • The scenario above sets up inquiry as to the circumstances of the change in the Will and the imbalance between the brothers.

  • The actions of Bob are suspicious in taking advantage of his Dad at a time of frailty, weakness and questionable capacity.

What Can Joe Do?

  • The Will can be set aside if it is the product of “undue influence”. That is, Dad did not understand the effect of the Will or he was taken advantage of by Bob.

  • Joe can demand to see prior Wills executed by Dad to see how they differ.

  • Joe will also subpoena the medical records of his Dad for evidence of “capacity” or medical conditions which may affect his Dad’s ability to comprehend.

  • Joe should inquire as to property that was transferred to Bob when Dad was alive, and put Bob to proof that those transactions are not invalidated by his “special relationship”. Because of the “special relationship” between Joe and his Dad, Public Policy places a presumption of undue influence on Joe that he will have to rebut.

The Legal Strategy:

​​

  • Bob must act quickly to lodge a Caveat before the grant of probate. Use Form 116.

  • A Form 118 will then set out the grounds usually:

  • The Will is invalid because it was procured by undue influence; and/or

  • Dad lacked testamentary capacity.

  • Commence Supreme Court proceeding within 6 months of lodgement otherwise the caveat lapses.

  • Demand Bob prove the Will in “solemn form” within say 14 days failing which Joe should commence his own proceedings for directions from the Court.​

  • Issue a Notice of Non-party Disclosure ( a type of subpoena) on:

  • Lawyers who prepared the Will and any previous Wills. Tip: Also ask for the time costing records and invoices. Check for emails fraudulently sent by Bob on the pretence that they were from his Dad.

  • Doctors/hospitals who treated Dad. Do the palliative care notes show Dad to be on pain killing drugs causing hallucinations in the dying days?

  • Accountants who may have prepared financial documents/tax records. Did the instructions come from Bob or Dad?

  • Other parties who may have documents that may shed light on the issue of influence.

  • It may be necessary to engage an independent accountant to prepare a forensic report on the movement of money if there are complicate trust and tax structures involved.​

  • Issue a “Larke letter” to lawyers who prepared the Will to provide a statement of the circumstance of execution of the Will. The Larke letter flows from the case of Larke v Nugus and imposes serious obligations on those lawyers.

  • In the above strategy Joe is looking for evidence of Bob’s undue influence over Dad in tipping the scales in favour of Bob.

  • Consider steps to disqualifying the opposing lawyer if they had a hand in drafting the Will on the basis that they may be called a witness.

  • Threaten the other side with indemnity costs including such costs to be paid personally by Bob and not out of the estate.

  • Engineer the case in a way that shows Bob is acting in his own interests rather than in the interests of the estate and churning up unnecessary costs.​

  • Do not reveal all your cards to the other side. Have some aces up your sleeve to deliver at the mediation. Be also prepared to deal with surprises the other side will throw at you.

Mediation

  • The Court will insist on mediation before trial.

  • Full preparation is essential including:

  • A chronology of events

  • Submissions on liability/medical/forensic evidence and conclusions about “mental capacity”.

  • A well prepared case at mediation may cause the other side to retreat and compromise.

Conclusion

  • Estate litigation is a complex undertaking. The evidence can be hard to obtain.

  • However persistence and a well thought strategy maximises prospects of success for claimants who are in circumstances similar to Joe.

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