How to avoid potential claims against your estate...

It is often the case that Wills made many years ago and never updated can be prime candidates for a challenge.

Having a promise from the deceased that you will be looked after in their Will, only to find the Will was never updated after the making of that promise can be more common than you think.

In one instance, in the last decade of his life an elderly man received a lot of assistance from a close friend. In return, he had told them they would be rewarded in his Will, however details of this intention were never confirmed by the man, either in conversation or in his Will.

With no children, spouse, or grandchildren, the elderly man had left all his assets to a church group and an international charity. By failing to update his Will, those who had been promised to benefit from the deceased assets were left with nothing more than a lost intention.

The close friend of the deceased, who assisted him in his later years, could make a claim against the Will, however the process of doing so can be time-consuming and costly, particularly if the intention to reward is light in evidence.

Such a claim can be made under the Law Reform (Testamentary Promises) Act 1949. A successful claim requires the claimant to prove services were rendered, that there was a promise made by the deceased to reward the claimant, a link between the services and promise can be established, and that the deceased failed to make good on the promise by providing the claimant the reward during their lifetime or under their Will.

The investment in this process can be high, and establishing a valid claim would be difficult in the above situation.

Work or services carried out by the claimant has a lower threshold for non-family members than it does for those within a family context. Providing emotional support as a neighbour may be enough, whereas support given by a family member is considered an extension of their family relationship.

However, an expectation that you will be rewarded based on this is not realistic. You still must prove that an express or implied promise by the deceased was made which can be difficult to prove if there is no witness to the alleged promise, or evidence in writing to validate the existence of the promise.

If you are hoping to receive a benefit of what was promised to you, you can enquire with the Estate’s lawyers upon death, but the answer you will get will most likely be limited to whether you are a beneficiary. If you are not a beneficiary, then you are not automatically entitled to further information, such as a copy of the Will.

On the flip side, you may want to honour those who assisted you in your life by ensuring they are sufficiently provided for after you have passed. It pays to ensure your own Will is updated to avoid leaving behind disappointed family and friends. 

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Shaun Cousins & Brianna Cadwallader