Challenging a Will?

16 Jun 2017

Many people take comfort in having a will that expresses their final wishes, believing that upon their death the instructions they have set out will be followed.  Therefore, it may come as a surprise to some that your will can be challenged after you die and if successful, a Judge may decide how your estate is divided. 

 

The legal validity of the will may be challenged if, for example, it does not comply with procedural requirements such as witnessing or if the deceased was not of sound mind when they signed it. If the will is found to be invalid, either an earlier will can be reinstated or the estate will be distributed under the rules of intestacy.  

 

Pursuant to the Family Protection Act 1955, a defined class of relatives can make a claim against an estate if adequate provision was not made in the will for their proper maintenance and support. To establish a claim under this Act, the claimant must show that the deceased had a moral duty to provide for the claimant, and that they have breached that duty by failing to provide for the claimant in the will or providing inadequately.  The court will consider several factors in assessing a claim, including whether the decreased had a legal or moral duty to maintain the claimant and whether the claimant was left anything in the will. 

Claims can be made under the Law Reform (Testamentary Promises) Act 1949 if the deceased promised to leave the claimant something in their will in return for services rendered or work performed, and failed to do so. The claimant must establish that they rendered services to the deceased during their lifetime and the deceased made an express or implied promise to make some provision for the claimant in their will, then failed to fulfil that promise. 

 

A surviving spouse, civil union partner or de facto partner can elect to inherit what is left to them under their deceased partner’s will or to apply for a division of relationship property under the Property (Relationships) Act 1976. The property division rules that apply on death under the Act are largely the same as those that apply on separation.  

 

While there are never any guarantees that your will might not be challenged after your death, there are things that you can do to reduce the chances of a challenge and/or reduce the likelihood such a challenge will be successful.  If you would like to protect your will from challenge or if you need to make a claim against an estate, contact the team of experts at Arnet Law today.

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