Often the plaintiffs in will disputes and claims for further provision are elderly, and sometimes they

become involved in a protracted legal dispute.

What happens when the plaintiff starts to display the early signs of dementia? Surely they will be in

even greater need of provision from the deceased’s estate as the progress of dementia and

Alzheimer’s disease is irreversible and incurable.

Where one party is losing the capacity to give instructions to their legal team, there are serious

implications for the conduct of a court proceeding. Frequently the only option is to appoint a

litigation guardian for the remainder of the proceeding. This involves making an application to the

Court for such a person to be appointed. This is usually brought by the plaintiff’s lawyers.

In one such case, a widow contested her husband’s Will, claiming she was not properly provided for.

It was her deceased husband’s second marriage and he had children from his first marriage. These

step-children, who had previously had a good relationship with the widow, were very reluctant to

settle the widow’s (her) claim. Two unsuccessful mediations were held and the proceeding dragged

on for 3 years.

When the widow began to exhibit signs of dementia, her lawyers indicated that they would be

seeking the appointment of a litigation guardian or “next friend”. Then her step-children applied to

the State Administrative Tribunal for orders appointing them as guardians and financial

administrators of her estate.

The Tribunal, perhaps not surprisingly, refused to appoint them as guardians and financial

administrators, as they were disputing her claim for more from the estate. At the same time. The

Court appointed the Public Advocate as her guardian and the Public Trustee as administrator of her

estate. The Public Trustee acted in the proceeding as litigation guardian also.

As a tactic, the application for guardianship and administration by the defendants had the effect of

further delaying the determination of the proceeding. Because there was a clear conflict of interest,

it was never likely that the Tribunal would appoint the defendants in the proceeding as the guardian

of the plaintiff. As the estate was not large, the delay was only likely to incur further legal costs

which would further reduce the pool of funds available to settle the proceeding.

There is also the issue that if a person who is challenging the Will dies before the matter is settled or

heard by the Court, many of their rights die with them. By delaying the hearing of the claim by the

widow, her step-children may have hoped to avoid a payout by trying to delay any hearing until after

the widow died.

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Comments by Wills & Estate Specialist – Terry Johansson

It is always worth a phone call to a lawyer to get advice on your position- because every case is

different. CWPL has the expertise to carefully analyse the facts and apply the law in each jurisdiction,

whether in Australia or overseas.

Terry Johansson and the CWPL team is up to date on the latest cases in this area and will be able to

advise in detail on your particular circumstances.

00683.6/DR21198/AL/JJ/201-/AU/C/XXX/- -FSP/CA/?