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Estate Planning – Family Will Disputes

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Family Will Disputes – I helped my parent’s set-up a very successful grocery business fifteen years ago. The business was split equally in half between my parents and myself. I have now heard that they intend to give their 50 per cent share to my brother in their Will.

He has never had any say in the business and I feel that this is extremely unfair. Do I have just cause to dispute this?

Estate planning for family owned businesses is notoriously difficult. Particularly if one sibling has worked and invested significant time and money in the business and the other sibling has not.

As a first step it would be beneficial to seek legal advice on what options are available to resolve this issue prior to anything happening to your parents. This could be a discussion on what other options are available to make the distribution of your parent’s Estate more just and equitable.

For instance, this could be an amendment to their Will which provides you with the first right to buy your parent’s share in the business in the event that your brother decides to sell these shares. Alternatively, arrangements could be made to provide your brother with other assets from your parent’s Estate which are equal to the value of their shares in the business.

These are just some of the options that could be explored with an expert Estate Planning Lawyer. The advantage of this approach is that it minimises the potential of claims after the death of your parents as well as ensuring that the relationship between you and your brother is not adversely affected.

It is often necessary to include all the relevant parties in this discussion in order to reach an arrangement that is acceptable and fair to everyone. As hard as those discussions may seem it is the best in which to make sure all parties believe that the distribution of your parents Estate is fair and equitable.

In the event that you are unable to come to an agreement then it may be necessary to challenge the Will after your parent’s death. This can be done by way of a Family Provision Claim as you are an eligible person to make such a claim. In order to be successful in a family provision claim you need to prove to the Court that your parents did not make adequate provision for your proper maintenance, education or advancement in life.

The Court will consider the following in family provision claims:

(a)  Any obligations and responsibilities owed by your parents to you and to any other beneficiary of their Estate;

(b)  The nature and extent of your parent’s Estate and any liabilities of the Estate;

(c)  Your financial resources (including earning capacity) and financial needs as well as the financial resources and financial needs of any other beneficiary;

(d)  Any physical, intellectual or mental disability of you or any other beneficiary;

(e)  Any contribution (financial or otherwise) by you to the acquisition, conservation an improvement of your parent’s Estate for which you did not receive adequate consideration;

(f)  Any provision made by your parents to you;

(g)  Any evidence of the testamentary intentions of your parents, including evidence of statements made by them; and

(h)  The character and conduct by you and any other beneficiary towards your parents.

Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide and advise you in Estate Planning.

Call today for a an appointment closer to home on 9221 0341

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