There are a range of ways in which a deceased person’s estate can be challenged, regardless of whether the deceased person had a valid Will in place, or they passed away without a Will (intestate).

Providing for your family:

The law requires that people provide financial support to their close family members when they are alive.  The law also states that this moral obligation extends to providing for family members in their Will, acknowledging that they were an important part of the deceased’s life and family.

If the deceased person did not make adequate provision for the proper maintenance and support of a family member, it may be possible to apply to the Court for further provision to be made from the deceased’s estate.

Family members who can make a claim include:

  •          Spouses and civil union partners;
  •          De facto partners living with the deceased at their date of death;
  •          Children and grandchildren; and
  •          Step-children and parents of the deceased, in some circumstances.

If a successful claim is made, the Court may make provision, or further provision, for the claimant from the deceased’s estate.

Other than asking the Court to make provision for a person who has not been adequately provided for in a Will, the family members themselves can also reach an agreement on how the estate should instead be distributed.  To read more about how this happens (for instance by creating a Deed of Family Arrangement), click here.

Promises to include you in the Will:

If someone provided services to a person and the person promises to pay for those services by leaving them something in their Will, a testamentary promise claim may be made against the deceased person’s estate if they did not do as they promised. 

This claim can be made by anyone and is not restricted to family members. To successfully make a testamentary promises claim, the following requirements must be met:

  •          The claimant must have provided services or work to the deceased;
  •          The deceased must have promised to reward the claimant for the services in their Will;
  •          The services must be connected to the reward; and
  •          The deceased must not have rewarded the claimant for the services or made provision for them in their Will.

If a successful claim is made, the Court has discretion to award a reasonable amount to reward the services performed by the claimant that would have otherwise not have been rewarded.

Invalid Will:

A Will may be deemed invalid for a range of reasons including:

  •          The Will-maker was unduly or fraudulently influenced when they signed the Will;
  •          The Will-maker did not have mental capacity to sign the Will;
  •          The Will-maker did not know they were signing a Will; or
  •          The Will-maker did not meet the formal signing and witnessing requirements.

If a Will is found to be invalid, the previous Will of the deceased will apply, or if there is no prior Will the intestacy rules will apply.  It is also possible to ask the Court to declare that an improperly executed Will be declared valid.   

Relationship Property:

When a party to a relationship passes away, the surviving partner has the option to divide their relationship property under the Property (Relationships) Act, or to inherit under the Will or intestacy laws.

If the surviving spouse chooses to divide the couple’s relationship property under the Property (Relationships) Act, they will not be treated as a beneficiary under the deceased person’s Will and any gifts left to them in the Will shall be revoked.  A Property (Relationships) Act claim will take precedence over any other claim against the deceased’s estate, in most circumstances. This is called option A. 

If the surviving partner chooses not to divide the relationship property under the Property (Relationships) Act, they will retain the assets they already own, any jointly owned assets by survivorship, and what they have been provided for in the Will.  This is called option B.

Once the decision is made it cannot be changed in most circumstances. 

If a person does not make a selection, they will inherit in accordance with option A. 

To learn more about how Option A and B work, click here

If you have concerns about the risk of a claim being made against your estate, or if you are concerned about making a claim against someone else’s estate, you should contact an experienced professional who can give you advice tailored to your circumstances.

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.