Common Issues in Family and Trust Disputes
Date: 21 October 2026
Authors: Catherine Ballantyne - Genuine People
Disputes over family wealth are rarely just about money.
When you scratch the surface, they often involve long-held expectations and promises that were made years earlier in very different circumstances.
Below are some issues we regularly see in estate, trust and family wealth disputes, and some practical steps to reduce the risk of conflict.
Claims that a will makes inadequate provision
Family provision claims remain one of the most common sources of estate litigation.
In Victoria, eligible persons, including spouses, partners, children and certain dependants, may apply to the Court under Part IV of the Administration and Probate Act 1958 (Vic) if the will does not make adequate provision for their proper maintenance and support.
Strict time limits apply, generally six months from the grant of representation, so early advice is essential for both claimants and executors.
Challenges to the validity of a will
A will may be challenged on the basis that the will-maker lacked testamentary capacity, did not know and approve of its contents, or was subject to undue influence.
These disputes commonly arise where a will was made late in life, during illness or cognitive decline, or where a beneficiary was closely involved in its preparation.
Contemporaneous medical evidence and the will-drafter's file notes are often important.
Control of family trusts
Discretionary trusts frequently hold significant family assets, yet they generally do not form part of a deceased person's estate. Decisions about whether to distribute funds, and in what proportions, are discretionary and may not reflect the deceased person's wishes.
Disputes often turn on who controls the trust after the death or incapacity of the key family member, particularly the roles of appointor and trustee:
- The trustee decides on distributions from the trust. The trustee may be an individual or a company.
- The appointor has the power to replace the trustee.
Who controls these two positions is central to who controls the trust.
Trustee and executor conduct
Trustees and executors owe fiduciary duties, including duties to act honestly, in the interests of beneficiaries, and to avoid conflicts of interest. This does not, however, mean that they have to do what the beneficiaries ask them to do.
Complaints often concern delay, failure to provide information or accounts, preferential treatment of some beneficiaries, or the use of trust or estate assets for personal benefit.
In serious cases, beneficiaries may seek orders requiring accounts, compensation for breach of duty, or the removal and replacement of the trustee or executor.
Constructive trusts
Land or businesses are sometimes promised to one child rather than the other children. Children may have given up other opportunities to assist with their parents' business or made improvements to a property using their own funds.
In these circumstances, children may claim a constructive or resulting trust over a business or property. This means that they claim the business or property is held, in part or in full, on trust for their benefit.
These cases usually have very little written evidence and rely on conversations over many years.
Reducing the risk of a dispute
Many of these disputes can be avoided or narrowed through careful planning:
- keeping wills and trust deeds up to date and documenting the reasons for estate planning decisions;
- addressing trust succession expressly;
- keeping clear records of financial dealings;
- communicating intentions to family members; and
- properly documenting any promises to one child over another.
Where a dispute does arise, early advice and a willingness to explore mediation can often preserve both relationships and estate assets.
Catherine Ballantyne, the Practice Group Leader of the litigation team, has handled many cases involving family disputes and is well placed to advise. Catherine can be contacted at [email protected].
Frequently asked questions about family, estate and trust disputes
In Victoria, an eligible person may bring a family provision claim under Part IV of the Administration and Probate Act 1958 (Vic) if the deceased's estate does not make adequate provision for their proper maintenance and support.
Eligibility and the merits of a claim depend on the circumstances. Being disappointed with an inheritance does not, by itself, establish an entitlement to further provision.
A family provision application must generally be made within six months of the grant of probate or letters of administration. The period runs from the grant, rather than the date of death.
Early advice is important because time limits and the administration of the estate can affect the options available. Different rules may apply to other types of estate and trust disputes.
A family provision claim concerns whether an eligible person has received adequate provision from the estate.
A validity challenge concerns whether the document is legally effective as the deceased's will. Grounds may include a lack of testamentary capacity, a failure to know and approve the will's contents, or undue influence. These are distinct claims requiring different evidence.
Generally, assets held in an existing discretionary family trust do not form part of the deceased's personal estate and are not automatically distributed under their will.
Control and succession depend on the trust deed and the arrangements governing the trustee and appointor roles. Estate planning should address those arrangements alongside the will.
In serious cases, beneficiaries may seek Court orders removing and replacing an executor or trustee. Depending on the circumstances, other remedies may include orders requiring accounts or compensation for a breach of duty.
A disagreement with a beneficiary does not, by itself, justify removal. The nature of the conduct and its effect on the administration of the estate or trust are important.
It may. Disputes can arise where a person was promised a property or business and gave up other opportunities, worked in a family business or contributed funds in reliance on that promise.
The available claim depends on the facts and legal basis relied on. Evidence of the promise, financial contributions and the parties' conduct over time can be important. A promise does not automatically establish ownership.
Yes. Mediation can help parties explore a negotiated outcome without having every issue determined at trial.
Early legal advice, clear financial records and a realistic understanding of each party's position can assist negotiations. A resolution may help preserve family relationships and reduce the costs paid from family or estate assets.
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