When a loved one passes away, grief can sometimes be overshadowed by conflict over the Will. This is a painful reality for many families. A recent case in the NSW Supreme Court’s Equity Division highlights this difficult situation and provides an important lesson about the limits of free legal assistance in such disputes.
This blog post breaks down the Court’s decision to refuse free “pro bono” legal help to two siblings locked in a bitter fight over their parents’ estate.
The Family and the Dispute
The case involves the estates of a father and mother who passed away, leaving behind four adult children. The main asset is the family home in Blacktown, which is at the heart of the conflict.
Nahed (the Plaintiff): She put forward a 2022 Will from their father that leaves the entire estate to her. She is applying for Probate.
Emad and Ragaie (the Defendants): They have lodged caveats against Nahed’s application, claiming the 2022 Will is invalid, forged, or the result of undue influence.
Marciel (another sibling): Lives in Egypt and is involved in the proceedings but is not legally represented.
There is also an earlier Will from 2019, which suggests the Blacktown house should be divided equally among all four children. This sets the stage for a classic “Will validity” dispute, with the potential for further claims under family provision laws if Nahed’s preferred Will is accepted.
The Critical, Overlooked Problem: A Shrinking Inheritance
While the family was focused on their legal battle, the Court identified a much more urgent issue: the estate itself is rapidly losing value.
The Blacktown property has a mortgage, and the loans are in serious default. The Court examined the bank statements and discovered a alarming situation:
The total mortgage debt is over $300,000, not the ~$20,000 the parties had claimed.
Default interest is being capitalised (added to the loan) at a rate of nearly $3,000 per month.
This means the debt is growing by over $35,000 a year while the family fights.
The Court found that renting out the property would not cover the monthly interest, let alone reduce the debt. The only realistic way to preserve what’s left of the inheritance for whoever eventually wins is to sell the property now and place the proceeds in a trust. Otherwise, the conflict could erase a significant portion of the estate’s value.
The Request for Free Legal Help and the Court’s Decision
Both Nahed and Emad asked the Court to refer them to the Bar Association and Law Society for pro bono (free) legal assistance. The Court declined for several key reasons:
Pro Bono is a Precious, Limited Resource: The Court emphasised that free legal help relies on the generosity of lawyers donating their time. This resource must be saved for those who are truly unable to navigate the legal system on their own and have no other options.
The Parties Are Capable Self-Represented Litigants: The Court observed that Nahed, in particular, was “well capable of gathering evidence, swearing detailed relevant affidavits and advancing and defending her rights.” In other words, she was demonstrating a good ability to represent herself, even without a lawyer.
The Underlying Problem Isn’t a Lack of Lawyers: The core issue is the eroding value of the estate. Appointing free lawyers for the siblings would not solve the financial crisis. It would just add another layer of complexity without addressing the urgent need to sell the property and stop the financial bleeding.
Potential Entitlement to Estate Assets: The Court noted that Nahed has a claim to a share of an estate that, if managed properly, could be worth hundreds of thousands of dollars. In such circumstances, it is difficult to justify granting her free legal services when she may eventually have the means to pay for them.
What the Court Ordered Instead
Instead of granting free legal help, the Court took two decisive steps to move the case forward:
A Recommendation for Reduced-Cost Legal Help: The Court will refer the case to the professional legal bodies, not for pro bono help, but to see if a junior barrister or solicitor would be willing to act for the parties at a reduced or favourable rate, with payment to come from the estate once it is finally administered.
An Order to “Show Cause” for an Independent Administrator: The Court has ordered the parties to explain why an independent administrator should not be appointed to take control of the estate. This neutral professional could make the decision to sell the Blacktown property, communicate effectively with the sibling in Egypt, and preserve the assets for the eventual beneficiaries.
Key Takeaways for Families in Conflict
The Court Looks at the Big Picture: Judges are not just focused on who is “right” in a legal dispute. They are also responsible for ensuring that estates are administered properly and that assets are not wasted through neglect or conflict.
Pro Bono is Not a Right: Free legal assistance is a discretionary benefit for the most deserving cases, not an automatic entitlement for anyone who says they can’t afford a lawyer.
Conflict Has a Real Cost: As this case shows, fighting over an inheritance can literally burn through the money you’re fighting for. Sometimes, the most practical step is to seek a mediated solution or accept independent management to preserve the estate for everyone.
The message from the Court is clear: in complex family estate disputes where significant assets are at risk, the parties are expected to find a way to work towards a solution, rather than relying on the limited resources of the voluntary pro bono system.
Disclaimer: This article is for general information purposes only and does not constitute legal advice. You should seek independent professional advice for your specific circumstances.
