Contesting a will

Contesting a will is a costly and a painful process however it is a scenario which plays itself out in the courts fairly often.

There are numerous reasons people challenge wills. Most grievances stem from a family member feeling they’ve been hard done by in their deceased relative’s will. The problem is the court generally honours whatever is written in the will unless the claimant can prove that they have not received their ‘moral duty’, or on the grounds that the will is invalid.

 A will may be ruled invalid if the testator (will writer) was not in a good state of mind when the will was written, i.e. a Parkinson’s sufferer, or if the will was not properly signed and witnessed. Close family members may contest a will on the grounds of moral duty if they have been inexplicably or unfairly cut from the will. Most claims are laid by the children of the deceased.

 In New Zealand you must file your claim in Court within 12 months of the grant of probate. Under the Family Protection Act 1955, those entitled to challenge a will are the deceased’s spouse/civil union/de facto partner (of at least three years); child; grandchild; dependent step-child and parent.

 As of 2002, the three year requirement for de facto relationships can be waived if there is a child, or if the court is satisfied that the de facto partner made a substantial contribution to the relationship and not making the order would cause them serious injustice.

 When making its decision the court takes into account multiple factors: the wishes of the deceased, the financial needs of the applicant and what has been received by other beneficiaries.

 The process of challenging a will is expensive and legal costs can be deducted from the estate. In order to prevent your will being challenged it is a good idea to have your will written by an experienced legal professional. It is also important to update your will as your life circumstances change, perhaps as a result of marriage, divorce or the death of a beneficiary.

 For more information on wills, go to Perpetual’s ‘Wills Explained’ section.