Wills may seem like the last word, but they are not always set in stone. There are valid reasons to challenge a Will.
Here are five main situations where someone can challenge a Will under New Zealand law:
- Inadequate provision: You have been left out of a Will or you believe the Will doesn’t make adequate provision for you
- A promise in exchange for services: The deceased made a promise to you that if you did something for them, they would provide for you in their Will
- Relationship property: You are the partner of the deceased and you want to claim a half-share of the relationship property
- Lack of capacity: You can show that the deceased did not have the mental capacity to make a Will
- Undue influence: There was undue influence on the deceased when making the Will – influence or pressure that impaired the deceased’s free will to make the Will.
Let’s take a look at each situation where you can challenge a Will in detail.
1. Inadequate provision
A close family member of the deceased can apply for a greater share of the estate or for a share of the estate if that person was left out of the Will. The claim is made under the Family Protection Act 1955.
The court cannot completely rewrite the Will. The court can only remedy the failure to make adequate provision. Although some principles apply, there are no exact rules to determine the exact share of the estate. This means that it is important to get specialist advice if you are thinking of challenging a Will or you are a beneficiary of the estate and a claim is being made against the estate by other family members.
2. A promise in exchange for services
If the deceased has promised someone that they will be provided for in their Will for work done or service to the deceased, then a claim can be made under the Law Reform (Testamentary Promises) Act 1949. There must be a promise, but it does not have to be express, i.e. it can be implied. The provision made in the Will for the claimant must be insufficient reward for the services or work of the claimant.
Unlike Family Protection Act claims, a testamentary promises claim is not restricted to a family relationship with the deceased. Where there was work or services in a family relationship with the deceased, these must go beyond what might be reasonably expected within the relationship to qualify for an award.
3. Relationship property
A surviving spouse or de facto partner can challenge a Will by making a claim against the estate for the division of the relationship property. A relationship property claim on death is very similar to a claim made on separation.
There are tight time periods for notifying the estate of the claim, i.e. within 6 months of the grant of administration. This is done through a formal process of notifying the administrator of the estate that the survivor has chosen option A. Option B is the default provision, which is not to make a relationship property claim. There is no need to take any action if option B is the chosen option.
If a survivor makes an application for division, then the survivor will in most cases not receive anything from the estate. The court can allow the survivor to inherit. To do this, the court has to be satisfied that this is necessary to avoid injustice – this is a large obstacle.
For example, if the deceased owned the family home in which they lived together and the deceased made no or limited provision for the survivor in his/her Will, then it will make sense for the surviving partner to make a claim for the division of the relationship property. On the other hand, if the survivor will receive a greater benefit from the estate than a half-share of the total relationship property, then it will make sense not to make a relationship property claim. The surviving partner can still make a Family Protection Act claim.
4. Lack of capacity
A person has to be of sound mind to make a valid Will. This means that the person has to have sufficient mental capacity to understand and appreciate the dispositions of property in the Will. The person also has to understand the extent of their property, because if the person does not then they will not appreciate how much or how little property they have.
The fact that the person has a property manager or an attorney for personal care and welfare does not necessarily mean that the person will not have testamentary capacity. The person may have had sufficient mental capacity to make a Will.
If the solicitor has any concerns about the testator’s mental capacity (the testator is the person making the Will), it is best practice for the solicitor to carefully document the advice given and the steps taken to ensure that the testator has mental capacity. It would also be prudent for the solicitor to suggest that a medical certificate be obtained.
If the Will is set aside for lack of capacity, then if there is an earlier Will that will be the deceased’s last Will. If there is not, then the estate will be distributed in accordance with the intestacy rules.
5. Undue influence
A Will, or part of a Will, can be set aside if there was undue influence on the testator. This means pressure on the testator to the extent that it impairs the free Will of the testator.
On the other hand, persuasion of the testator or influencing the testator by relying on the affection that the testator has for the person benefitted will not be enough to establish undue influence.
Successful undue influence cases to challenge a Will are quite rare. This is most probably because of the difficulty in proving that there was undue pressure on the testator to make the Will in a particular way when the most important witness that knows the situation, the testator, is dead.
Is there a time limit to challenge a Will?
There are very strict time limits to challenge a Will in New Zealand. Talk to us as soon as possible to get legal advice specific to your situation.
by Clinton Light, Special Counsel, Shine Lawyers, Christchurch.
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