CHALLENGING A WILL or MAKING A CLAIM ON THE ESTATE
There are many circumstances which may give rise to challenges on Wills and Estates. When we talk about contesting a will, it can have two meanings:
- The first basis for a challenge is under Chapter 3 of the Succession Act (formerly the Family Provision Act)- commonly known as a Family Provision Claim.
- The second is that the will is not valid, usually either because the legal formalities have not been met, this is known as an “Informal Testamentary document” or because the maker of the will (“the testator”) did not have testamentary capacity at the time the Will was made.
FAMILY PROVISION CLAIM
- Have been left out of a Will; or
- Haven’t received enough out of the Will or receive less than other beneficiaries for no good reasons; or
- Miss out altogether because the deceased didn’t have a will at all.
Then it is possible to bring a claim by making application to the Supreme Court for provision or further provision in the estate under Chapter 3 of the Succession Act (formerly the Family Provision Act).
In simple terms to bring a claim you will need to prove that you are an “eligible person” and have been left without adequate provision from the deceased person’s estate.
“Eligible person” this can include a spouse, de-facto, former spouse, children, dependent grandchildren, persons who at any particular were part of the same household and dependant (eg: siblings, foster children) or persons who were in a close personal relationship at the time of the persons death (unpaid carer).
In this scenario we can help you bring a claim against the estate. Undertake any settlement negotiations on your behalf and put forward the necessary evidence in support of your claim before the Court. At the Estate Litigation Experts we have a great deal of experience and success in handling these cases. If you believe this applies to you then we can help you every step of the way.
Time limits: To make a claim for Family Provision, a strict time limit of 12 months from the date of death applies. Claims commenced outside this time limit require approval of the Court.
INFORMAL TESTAMENTARY DOCUMENTS
If the formalities have not been strictly met, the Supreme Court has the power to still recognize the document as a valid will under Section 8 of the Succession Act, if there is sufficient evidence that the testator recognised the document as representing his or her last wishes, and intended it to operate as their last will “without more”. A suicide note is an example where an informal testamentary document has been held as a valid will. If you think you may have a document that may be an informal will please contact us for advice.
LACK OF TESTAMENTARY CAPACITY
In a different category the mental capacity of the testator to make a will may be in question. Testamentary capacity is assessed on the basis of a test which was developed in the case of Banks v Goodfellow.
It is necessary to show that the person making their last Will and Testament:
- Understood the nature of the will and its effect;
- Had some idea of the extent of the property which they are gifting under the will; and
- Were aware of the persons for whom they would usually be expected to provide (even if he/she chooses not to) and be free from any delusion of the mind that would cause him/her reason not to benefit those people.
The harder questions arise if the testator is claimed to have been subjected to pressure, the legal term for this is “Undue Influence.”
Signing a will is strong evidence that the maker accepts it as a valid document. To set a will aside on the grounds of undue influence, one must virtually show that the maker was so pressured or overcome that the will does not represent their true wishes and intention.
BROKEN PROMISE – EQUITABLE ESTOPPEL CLAIM
You may have had an expectation of being named a beneficiary in a Will. This expectation can be based on a promise made to you by a person that in return for care provided to them in their lifetime they promised to leave you an expectation in their Will (e.g. their home or a sum of money) but failed to do so. It must be shown that you relied on their promise to your disadvantage.