What are grounds for challenging or contesting a will?

24 April, 2014 | Carolyn Ranson

Coming to terms with the death of a loved one can be made much more difficult by disagreements regarding the distribution of their assets.  Even if there is a valid Will in place, it can be challenged in a number of ways and the following claims can be made against an estate:

Family Protection Claim (Family Protection Act 1955)

The basis of a family protection claim is that inadequate provision has been made by the deceased person for the proper maintenance and support of a restricted set of family members. 

Case law has divided the claim for “proper maintenance and support” in to two elements. The first is the concept that the Will maker has a moral duty to provide financial support for the applicant and the second is that the Will maker has a moral duty to recognise the applicant as being part of the deceased’s family by adequately providing for them in their Will.

Applications can be made by a spouse, de facto partner, child or grandchild of the deceased.  Stepchildren can also be included if they were being financially supported by the deceased at the time of his or her death.  In certain situations, parents may also be able to bring a claim.

A claim must be bought within twelve months of probate of the Will being granted by the High Court.

Testamentary Promises Claim (The Law Reform (Testamentary Promises) Act 1969)

The law provides that if the deceased has promised someone that they will be provided for in their Will, and does not do so, then that person may be able to bring a claim under this Act.  This person need not be related to the deceased.

The promise must be in recognition of some sort of service which must be more than the usual family obligations of natural love and affection.  The services could include, for example, the services of a neighbour in providing meals on a regular basis in anticipation of being left a legacy in the deceased’s Will.

A claim must be bought within twelve months of probate of the Will being granted by the High Court.

Property (Relationship) Act 1976 Claim

A claim under this Act is made by a spouse or de facto partner of the deceased.  The claimant must have been in a de facto relationship with the deceased for more than three years where the law presumes that any property (which will be deemed relationship property) will be shared equally between the two parties.  If there is a child involved then that time limit may be reduced.

Upon the death of the Will maker, the claimant has a choice.  They can choose to either accept their entitlement as provided in the Will or choose to make a property relationship claim.  This choice must be made within six months of grant of probate (or letters of administration) or, if formal administration is not required, within six months of the date of death.

Once this choice has been made, they cannot then go back on that decision.  If there is no decision made then the claimant is deemed to have elected to take the distribution as provided for under the Will.

Claim of Mental Incapacity of the Will maker

Where there is evidence to suggest that the Will maker did not have the required mental capacity (called testamentary capacity) at the time that they made their Will then there may be grounds to challenge the Will.

Once there is some evidence provided by the interested parties, such as an inconsistent provision in the Will or other evidence of lack of capacity at the time that the Will was signed, then it falls on the beneficiaries of that Will to establish that the Will maker had capacity when he or she signed the Will.

What will need to be established is that at the time that the will maker made the Will:

• they understood that the document that they signed was a Will and what the Will meant;
• they understood the extent and the nature of the property being disposed of under the Will; and
• they recognised the people who would ordinarily benefit under the Will.

Any medical evidence at the time of the execution of the Will, together with evidence from the solicitor who took the Will instructions and witnessed the signing of the Will will be crucial in these types of claims.

This type of claim is usually brought by beneficiaries of a previous Will who might have been disadvantaged by a later Will.  This may be family but equally could be a friend or even a charity.

If there is any doubt at all as to a Will maker’s mental capacity it is recommended that a medical assessment be carried out at the time the Will is executed.

Claim of Undue Influence

The last type of claim which may be made against an estate is that the will maker was under undue influence when they made the particular Will.  The burden of proof in these matters lies with the person claiming the undue influence.

Circumstantial evidence will be important here such as an indication that the Will maker was suffering from pain, an illness or some mental incapacity (falling short of testamentary incapacity).  Factors such as whether the Will maker is dependent (financially, physically or emotionally) on others may also be relevant.

Again, claimants are normally beneficiaries who have been disadvantaged by a later Will and could potentially include any type of beneficiary.

An experienced estates litigator can advise you on the best way to protect your estate from a claim and on defending a claim against an estate, where you are the main beneficiary or the executor.  They can also advise and assist on bringing a claim against an estate.

In accordance with our obligations under the Lawyers and Conveyancers Act 2006, we cannot provide legal advice unless you have become a client of Smith and Partners and have received our Terms & Conditions of Engagement and Info for Clients.

If you would like advice on any matters regarding challenging or contesting an estate, please contact Suzanne Sumner, Personal Assistant to estate litigation expert, Carolyn Ranson to find out how you can become a client of Smith and Partners and to set up an appointment to discuss your estate litigation matter with Carolyn.

Suzanne Sumner
Ph: 09 837 6840
Email: Suzanne.sumner@smithpartners.co.nz

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