Equity in estate litigation

Abstract

Equitable claims are now increasingly being raised in estate litigation, particularly in conjunction with family provision applications. In the landmark High Court case, Bridgewater v Leahy,1 an inter vivos transfer of substantial property by an elderly grazier to his nephew was set aside on the grounds that it was an unconscionable bargain, to the extent necessary to do practical justice. The practical consequence of this was to enlarge the estate available for the testator’s widow and daughters, who had brought a family provision application against a largely depleted estate. Following Bridgewater v Leahy, the equitable doctrines of undue influence and unconscionable bargains have increasingly been alleged with a view to setting aside inter vivos transfers of property. However, other equitable actions are now also becoming intertwined with estate litigation.