Updated 4 November 2026
CM Law's Ultimate List: The top 50 FAQs on Administration of Estates #49: Consider Estate Litigation Risks
Estate litigation can delay distribution, reduce the inheritance available and expose an executor to difficult decisions. Assessing risk means identifying the actual legal dispute, the evidence and the practical options. A family disagreement does not automatically justify court proceedings, but an executor should respond promptly when an identifiable claim threatens the administration.
What kinds of estate disputes can arise?
Estate disputes can concern whether a will is valid, whether an eligible person should receive further provision, who owns an asset, or how an executor has administered the estate. Each dispute involves different legal questions and procedures. Identifying the claim accurately is the first step towards assessing risk and responding proportionately.
Separate complaints about unequal gifts from allegations of incapacity or undue influence. A request for accounts is different again. Ask the person raising concerns to identify the decision, document or entitlement they dispute, rather than responding to general accusations.
Does an unequal will automatically lead to a successful claim?
An unequal will is not automatically invalid, and dissatisfaction alone does not establish a successful family provision claim. Under NSW law, eligibility is only a starting point. The court considers whether adequate provision has been made for the eligible applicant's proper maintenance, education or advancement in life, applying the statutory framework.
The Succession Act 2006 also identifies relevant considerations, including financial needs, relationships and competing responsibilities. Assess the applicant's circumstances and the estate as a whole; avoid assuming adult children must receive equal amounts or that exclusion necessarily defeats a claim.
What deadline applies to family provision proceedings?
A NSW family provision application generally must be filed within twelve months after the deceased's death. A late application requires the parties' consent or the court's permission under section 58(2); court permission is not assured. A complaint letter or ongoing negotiation does not itself amount to filing proceedings within time.
Legal Aid NSW's family provision guidance explains the usual deadline. Obtain advice immediately if time is approaching or has passed. Other estate disputes have different procedural rules, so do not apply this deadline indiscriminately to every challenge.
What should an executor do when a claim is threatened?
Record the communication, preserve relevant documents and obtain advice before making a distribution that could prejudice the claim. Ask what remedy is sought and whether proceedings have been filed. An executor should assess a credible threat carefully without admitting allegations, promising a settlement or treating every complaint as established fact.
Give your solicitor the will, grant, asset schedule, liabilities, relevant correspondence and any court documents. Check service dates and response requirements promptly. Delaying a response can create additional procedural problems even where the underlying claim may be defensible.
How can early evidence collection reduce risk?
Reliable evidence helps distinguish a substantial claim from misunderstanding and supports informed decisions about negotiation or litigation. Preserve original documents, financial records, relevant communications and a clear chronology. Where will validity is questioned, legal advice can identify the evidence needed about execution, instructions, capacity and the circumstances surrounding the document.
Do not alter notes or fill gaps with reconstructed certainty. Identify what is known, what is disputed and what requires investigation. Independent valuation or expert evidence should address a real issue rather than add expense without a useful purpose.
Why do accurate accounts matter in a dispute?
Accurate estate accounts show what the executor collected, spent, retained and distributed. They help beneficiaries understand the administration and can resolve concerns before positions harden. Maintain supporting documents and respond to reasonable information requests; vague assurances or unexplained transfers may deepen suspicion even when an expense was properly incurred.
The Supreme Court's accounts guidance distinguishes the duty to keep accounts from cases requiring court filing or passing. Providing a bank balance alone may not explain the administration. Make the connection between transactions, supporting invoices and beneficiaries' entitlements clear.
Can an executor also defend their personal inheritance?
An executor may also be a beneficiary, but the estate role and personal interest must be distinguished. Decisions made for the estate should reflect the executor's duties, not simply a wish to preserve their own share. A conflict may require separate advice, representation or directions about how the litigation should proceed.
Agree with the solicitor who the client is, what work is being undertaken and who is responsible for the bill. Do not assume the estate can fund every argument advanced by an executor who also has a personal stake.
Mediation can provide a structured opportunity to resolve estate disputes without a final contested hearing. It allows parties to examine legal risk, costs and practical settlement options with assistance from a mediator. Agreement is not guaranteed, and any proposed settlement must account for authority, affected interests and necessary court approval.
The Supreme Court's Probate and Family Provision List practice note addresses mediation and case management. Prepare current financial information and realistic options. A settlement involving a minor or another person under legal disability may require additional protective steps.
How should settlement options be assessed?
Compare a proposed settlement with the realistic range of court outcomes, likely legal costs, delay and the remaining estate. Consider enforceability, tax consequences and the interests of everyone affected. A sensible assessment is based on evidence and advice, rather than a determination to prove which family member behaved worst.
Obtain advice about implementing the agreement, including releases, consent orders and any asset transfers. Record exactly which claims are resolved. A private arrangement between some relatives may not bind an absent beneficiary, creditor or other person with enforceable rights.
Does the estate always pay everyone’s legal costs?
No. Legal costs are subject to the court's discretion and the applicable rules. An unsuccessful claimant may have to pay their own costs and some of another party's costs. An executor's access to estate funds also depends on whether costs were properly incurred; it is not an unlimited litigation budget.
Ask for estimates at each stage and consider how adverse costs would be funded. The Judicial Commission's costs guidance explains the discretion and the particular approach to family provision cases. Financial hardship does not provide automatic protection against a costs order.
What does the real Haertsch litigation show?
In Haertsch v Whiteway [2020] NSWCA 133, the NSW Court of Appeal overturned a family provision award and dismissed the claim. Its later costs decision, [2020] NSWCA 287, required the claimant to pay appeal costs and part of the defendants' costs below, illustrating that estate litigation carries personal financial risk.
The claimant had initially obtained additional provision from property treated as her father's notional estate. The appeal succeeded because the property could not be designated as notional estate under section 24 of the former Family Provision Act 1982, and because sufficient cause for the late application had not been shown. The costs orders required payment of the executor's appeal and cross-appeal costs and 25% of the relevant defendants' first-instance costs.
The executor's remaining properly incurred costs were payable from the stepmother's estate on an indemnity basis. The case applied the former Family Provision Act 1982 because of the father's death date; its specific notional-estate ruling should not be treated as a statement of today's statutory reach.
Can distribution proceed while a dispute is unresolved?
Distribution during a dispute requires specific advice about the claim, available funds and the executor's exposure. A notice of intended distribution does not permit known claims to be ignored. In some cases an appropriately assessed reserve or court directions may allow limited administration to continue while the disputed issue is resolved.
The Supreme Court explains that publishing the notice is not mandatory and offers only conditional protection. The six-month distribution protection in section 93 is different from the usual twelve-month family provision filing period. Do not treat six months as the expiry of all claims.
When should an executor seek court directions?
Court directions or judicial advice may be appropriate where a genuine uncertainty prevents responsible administration or the executor faces competing demands that cannot safely be resolved privately. The application must identify the problem and disclose relevant facts. Court involvement should serve a practical purpose proportionate to the estate and the risk.
Discuss whether clarification, mediation or an application is the suitable next step. Urgent protective relief may be necessary where assets are at risk. Conversely, routine disagreements do not all justify the expense of a separate court application.
How can communication reduce avoidable conflict?
Provide beneficiaries with clear updates about progress, remaining tasks and reasons for delay. Explain important decisions with appropriate supporting information and maintain a written record. Communication cannot eliminate a legally valid claim, but it can prevent uncertainty about the administration from becoming an additional source of disagreement and expense.
Use realistic milestones rather than guaranteed completion dates. Refer contentious legal questions to the estate's solicitor, and keep personal exchanges separate from formal administration updates. Regular information is usually more useful than silence followed by an unexpected final distribution proposal.
What is the practical next step for an executor?
Arrange an early legal review when a specific claim, conflict or unexplained financial issue emerges. Ask for advice on the merits, deadlines, evidence, costs and settlement options together. A written plan helps the executor respond consistently and protect the estate while keeping the scale of the response proportionate.
For advice on estate administration and estate disputes in NSW, contact CM Lawyers on (02) 9557 9000 or email lawyers@cmlaw.com.au. Bring the relevant documents and a short chronology of the dispute.
This article provides general information about NSW law, not advice about a particular estate. Obtain advice about the will, assets, beneficiaries and circumstances before acting.
Key resources
