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.
—
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/?