Challenging the Terms of a Will
The death of a loved one is always traumatic. Feelings of grief can be compounded when the Will is read and someone else feels they have been left out.
In some circumstances the provisions of a Will can be challenged, although there are strict timeframes that can only be extended in limited circumstances. Consequently, it is important that you speak with your lawyer as soon as possible if you have any concerns with the provisions of a Will.
While some people may feel uncomfortable with challenging a Will, it is important to remember many people do not keep their Wills up to date. It is not uncommon to find an older Will which has led to unintended consequences. For example, an out of date Will might not properly provide for someone who had recently become important in the Will-maker’s life, or a gift in a Will might fail because the property was sold not long after the Will was signed. Some of the ways a Will can be challenged are summarised below.
Capacity and Undue Influence
The Will-maker must have had sufficient mental capacity to make a Will and it must reflect his or her wishes. If the Will-maker did not understand what they were doing, did not have sufficient mental capacity to deal with their estate or were pressured to enter into or change their Will, the Court may be able to set aside the Will.
Family Protection Act
The Family Protection Act 1955 allows certain family members to make a claim against the deceased’s estate if they believe that there should have been further provision made for them by virtue of their relationship with the Will-maker.
The Property (Relationships) Act 1976 allows the spouse or partner of the deceased to make a choice – they can either take under the Will, or they can choose to divide the estate in accordance with the Act.
Dividing the estate means the spouse or partner will renounce all benefits they would otherwise have received under the Will, and instead, that part of the estate that was relationship property will be divided in a similar way as if the relationship had ended prior to death.
Claims under the Law Reform (Testamentary Promises) Act 1949 are less common. If work or services were provided to the deceased, and the deceased in return promised that they would reward that work or service with a gift in their Will, and did not do so, this Act allows that promise to be enforced.
Challenging a Will is not necessarily about usurping what was intended. In some circumstances it can be about giving effect to what the Will-maker would have wanted, but did not provide.This issue emphasises the importance of regularly reviewing your Will and discussing it with your lawyer to ensure that at all times it accurately reflects your wishes.
Should you have any questions concerning Wills or estates, contact Michael Robinson or Raechel Pedrotti at this office. We will be very happy to assist.
“To Michael Robinson – I wanted to thank you and your colleagues for many years of excellent service to the Bank. You have an outstanding business that has proved to be one of the most reliable and ethical businesses that Collections have dealt with in the almost 9 years I was with the Bank.”
“Joy, we cannot thank you enough for your help with our purchase! You have been wonderful to deal with and so proactive (and patient with my numerous emails). We will be visiting NZ in April so will make sure we drop in to thank you in person.”
“I have struggled with different legal firms over the years, but over the past few years I have engaged with Turner Hopkins with various requirements from personal relating to wills, family trust, property settlements and contracts through to commercial engagements including employment advice, commercial lease agreements and general legal advice. I have engaged with a number of the people in the firm and always found them professional, punctual in their responses and very sound in the advice provided.”
“I can't speak highly enough of Jenny. She got everything done in a timely manner and when my ex-husband threw a spanner in the works at the eleventh hour she got the required documentation to his lawyers and settlement back on track.”
“I have used Turner Hopkins for my legal services for over eight years. I have always found their level of service excellent and their work to a very high standard. I have used various lawyers at their firm for various businesses I have been involved with and have always had very positive experiences. I would highly recommend them.”