Contesting A Will
When a loved one dies
it can be a particularly difficult time. If the deceased has written a will it can make the process of dividing the deceased estate easier. But what should you do if you disagree with the division as set out by a will?
A will needs to be in writing,
witnessed by two people and nominate an executor. The executor of a will administers the distribution of assets to beneficiaries and any debtors that may have a claim to the estate. If you are a beneficiary of the will but don’t believe your share of the division was fair, or if you are not a beneficiary at all, you can contest the will.
You can contest a will within 12 months
of a person’s death under Chapter 3 of the Succession Act 2006 titled 'Family Provision'. The will can be contested, by spouses, de facto partners, ex-spouses, children or dependents and people who had close personal relationships with the deceased. There are different grounds available for contesting a will.
If the will doesn’t include you
or the division is what you consider to be unfair you can contest a will on these grounds. An example of this would be if a person receives a smaller division of assets than their sibling, or isn’t a beneficiary of the will while their siblings are, they could contest the will for unfair division.
If the will isn’t valid
it can certainly be contested. To be considered valid a will must be the most recent iteration of the document (written and witnessed), unaltered since signing and made by a person with the testamentary capacity to write the will. The will should not have been made with any undue influence.
For a person to have testamentary capacity
to write a will they must be of sound mind and memory and have an understanding of what they are doing. This means they must know what the will document is when they sign it and must understand the assets and property that they are dividing. Testamentary capacity can often be called into question if the deceased was elderly or unwell at the time of making the will. If a new will is made by an elderly or unwell person, a doctor can certify testamentary capacity.
A will can be considered to be made with undue influence
when a person that helps make the will can stand to benefit from the new will. It has to be proven that the person, deceived, intimidate or threatened the person writing the will. Contesting the validity of a will on the grounds of undue influence can be difficult to navigate, particularly if there was nobody to witness it happening. An estates solicitor can help navigate what you will need to prove undue influence.
If you are a dependent of the deceased
and don’t feel that you have been provided for in the will, you can contest it. The needs of a dependent are required to be met by Chapter 3 of the Succession Act 2006 titled 'Family Provision'. This chapter of the act ensures you are provided for if you are left out of the will or even if there isn’t a will written at all. A family provisions claim can be made to the Supreme Court and they will assess the dependent's relationship to the deceased as well as the needs and situation of the dependent. It is important to seek proper legal advice before applying to the court for a claim.