Contested wills: Why legal disputes don't stop after death

Ben Jago has lodged a case with the Anti Discrimination Commission in Tasmania following the death of his partner Nathan last January. Photo: Peter Mathew
Ben Jago has lodged a case with the Anti Discrimination Commission in Tasmania following the death of his partner Nathan last January. Photo: Peter Mathew
Ben Jago: "I actually didn't grieve for a long time. I don't know if I properly have yet. I'm still fighting." Photo: Peter Mathew

Ben Jago: "I actually didn't grieve for a long time. I don't know if I properly have yet. I'm still fighting." Photo: Peter Mathew

It all goes back to a particularly gruesome episode of grave robbing.

In 1614, Englishman William Haynes caused widespread disgust when he was caught digging up corpses to steal the sheets in which they were wrapped, before re-burying the bodies.

The court had to decide who he had stolen from: the corpses, or the people who had carefully wrapped their loved ones. In the end, the court ruled that Haynes had robbed from the living, since corpses cannot own property.

In death, we have fewer rights than we might think.

After a 15-month review, the Victorian Law Reform Commission last month recommended the state government introduce laws giving people the right to leave binding instructions over the disposal of their body (that is, whether they are buried or cremated), what rituals should accompany their funeral, and how they would like to be memorialised.

The commission was overwhelmed with submissions from people who told how their family had been riven by disputes after the death of a loved one.

One, who wished to remain anonymous, told of how their father remains buried in an unmarked grave, years after the man died.

They had remained close to the old man, visiting him often on his sickbed. But another of his children, a son from whom he had been estranged, took charge on the morning the father died; signing off on the paperwork at the funeral home and organising for the older man to be buried.

That son is yet to agree to the father's grave site having a plaque, a viewpoint causing deep distress to other family members.

Victorian Law Reform Commission chairman Philip Cummins says most people don't realise they have no say over what happens to their body after their death, even if they have made their wishes explicit before they die.

Instead, the right to decide what happens to a person's body rests with their executor, if they have a will, or administrator if they do not. This means it could fall to an accountant or lawyer to decide whether to honour a client's desire to be cremated and scattered at sea.

"People may reasonably expect funeral and burial arrangements to reflect their personal values and choices," Mr Cummins says.

"At the same time, if there is more clarity around people's wishes for their funeral, it will reduce the number of family disputes that occur after a person's death."

Tasmanian man Ben Jago knows first-hand the grief that can come from these fights.

In January 2015, he found the body of his long-term partner, Nathan Lunson, who had died by suicide after a long battle with mental illness. The pair had spent five years building a life together. They owned a house, shared a bank account, had filed joint tax returns and had been engaged for a year. They planned to marry in New Zealand.

But Ben says that when Nathan died, it was as if he had never existed. He says Nathan's mother took over the funeral arrangements and he was locked out of the process – further compounding his heartbreak.

Ben says Nathan wanted to be cremated in Hobart; he was instead buried in his home town, near his family. He and Ben's relationship was not so much as mentioned during the service.

Mr Jago puts this down to two factors: Nathan not having a will, and the pair not having registered their relationship, or married.

"If we'd been considered equal under the law, then absolutely things would have been different," Mr Jago says. "I actually didn't grieve for a long time. I don't know if I properly have yet. I'm still fighting."

For most people involved in end-of-life legal disputes, though, the tussle will centre on who stands to benefit from the dead person's will.

Partly, this is due to the rapid increases in life expectancy. A century ago, many people could be assured that the money they received from a parent's estate would go at least some of the way to help them set up a family home of their own. But Australians now live an average 25 years longer than they did then.

Kathy Wilson is the Law Institute of Victoria's head of succession planning, and Principal at law firm Aitken Partners.

She says disputes over wills generally take one of two forms. The first is challenges to the validity of a will, where a family member might claim the person who died did not have the mental capacity to make their will, understand what they were doing, or were forced to do so. They might even claim a will had been forged.

The second type of challenge, which is more common, is to the content of the will itself, where one person will challenge the amount of money or property they were bequeathed.

Ms Wilson says that as people live longer, and society shifts, the number of challenges to wills is increasing.

"There's no doubt about that, because society now recognises less formal sorts of relationships, like domestic relationships," she says.

In 1998, the Victorian government changed the law to allow more people to challenge wills, so long as they could show the person who died had been obliged to provide for them, and they had a corresponding need to be looked after.

But just four years later, the Victorian Law Reform Commission launched an inquiry into succession laws, amid fears the laws had become too liberal.

Lawyers cited the cases of neighbours, carers – and, in one case, an interstate house-sitter – being able to join a host of long-lost relatives to legally challenge for a share of an estate.

From January 1, 2015, Victorian law again imposed a limit on who can legally qualify as an "eligible person" to challenge wills, including children and step-children, former (with conditions) and current spouses and domestic partners, carers and grandchildren.

Ms Wilson says there is strong anecdotal evidence showing the number of challenges to the contents of wills is falling since these limits were reimposed.

More and more people are recording video wills, although Ms Wilson advises against this. Video testimonies raise eyebrows among succession planners: they can be more easily edited than can written testimonies.

Lawyers will be quick to tell you that a formal will, witnessed by two people aged over 18 is the most effective way to ensure your wishes are followed. But, says Wilson, "it can be on a paper napkin" – so long as the deceased person had intended that document to be their final will.

In the end, she says: "Sometimes you can meet with people and find out it's not about the money ... it's about their place in the deceased person's life. Sometimes it's about control. Sometimes it's about religious and cultural beliefs."

Lifeline 131 114

Writing a will

  • Discuss your plans with your family
  • Make your wishes known
  • Write them down, in front of two witnesses who aren't executors or beneficiaries
  • Think about who you should provide for
  • Talk to a lawyer, and
  • Take their advice

Source: Kathy Wilson, Law Institute of Victoria

This story Contested wills: Why legal disputes don't stop after death first appeared on The Age.