Challenging A Will - Estate Claims
Losing a loved one is tough. It is even harder when there are disagreements about how their assets are divided after their death.
Family disputes over estate distributions are more common than ever, especially with blended families, i.e. step-parents, half-siblings and step-siblings, getting in the mix.
At Turner Hopkins, our experienced team, Michael Robinson (who leads our Family Law and Litigation Team) and Principal, Jade Cookson, specialise in handling these sensitive situations with compassion while ensuring their clients receive the very best outcome.
The main grounds for a person to challenge a Will in the New Zealand Courts include:
Capacity – did the deceased person understand the terms of their Will when it was signed?
Undue influence – was the deceased person pressured by another person into making some (or all of) the provisions in their Will?
Testamentary promise – did the deceased person make a promise to another person to provide for them in their Will in exchange for an act/service provided to the deceased person, but which was not followed through with?
Family Protection Act – have certain family members who are entitled to receive a share of the estate been left out of the Will or not adequately provided for?
Mediation
Our proactive approach to estate disputes often leads to successful resolutions through negotiation and mediation to avoid the need for lengthy and costly court battles.
However, in many instances it may be necessary to commence Court proceedings before all parties fully appreciate the potential benefit of attempting to resolve their dispute through negotiation and mediation. These benefits of mediation include not only significantly reduced costs, avoidance of the extreme delays and inefficiencies in the Court system and certainty, but also the possibility to avoid the irrevocable breakdown of a family relationship and significantly reduce the stress involved for all concerned.
We are here to tailor make the best approach for you.
Timeframes
Seeking legal advice early is crucial in estate disputes as there are strict timeframes to adhere to too. Missing these deadlines could result in losing the opportunity to challenge a Will.
The most important timeframes to note are:
An administrator of an estate may distribute the deceased’s estate within six months of the grant of Probate without incurring personal liability for early distribution unless he or she has received a notice of intention to make a claim under the Family Protection Act. If such notice is given, the claim will need to be filed in Court within three months of the date of that notice.
Generally, a claim under the Family Protection Act must be filed within 12 months of the date of grant of Probate or Letters of Administration, or two years in the case of a minor or intellectually disabled child.
Case Studies
Recent cases in which we have represented parties in estate disputes include:
Daughter challenges Will pursuant to Family Protection Act
Our client was a daughter from her father’s first marriage. Our client and her family had provided extensive care and support for her father throughout his life and especially as his health suffered. However, our client’s father signed a Will which provided for the majority of his estate to be left to his step-children from his second marriage and excluded her. Within six months of consulting Turner Hopkins, the dispute had been resolved at mediation. Our client walked away with a share from her father’s estate which equated to the same her step-siblings received, which our client was satisfied adequately and fairly provided for her role in her father’s life and the support she gave him.
Grandchildren Claim against Grandfather’s Estate
In this case, a relatively modest estate was left to the deceased’s daughter from whom he was estranged. Nothing was left to his grandchildren, some of whom were close to and supportive of him. The grandchildren successfully challenged the Will and ultimately received a significant share of the estate.
Siblings challenge Will of deceased brother which left them nothing despite purporting to make generous provisions
In this case the matter was resolved in a manner satisfactory to our clients within two months of our initial instructions. We acted for three siblings of a deceased brother. The Will of the brother purported to leave an interest in the deceased brother’s property to each of his three siblings. The balance of his property was to go to his surviving child. Nevertheless, it transpired that the home was not in fact owned by the brother at the time of his death, but was held in the brother’s Family Trust and therefore not able to be gifted under his Will. The lawyers that acted for the deceased brother had failed to advise him of this fact and that the provisions made in the Will would therefore be meaningless. Our client successfully made a claim against the lawyers on the grounds that they had acted negligently and in breach of their obligations to our clients as intended beneficiaries under the Will. The lawyers for the deceased brother ultimately accepted liability to rectify the position and our clients received their just entitlement.
There are of course exceptions to all general rules, so it is still a good idea to seek legal advice to see if you meet the criteria to apply.
