The death of a loved one can be traumatic. Feelings of grief can be compounded when the Will is read and someone who was close to the deceased feels that 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 For example, an out of date Will might not properly provide for someone who had recently become important in the Will-maker’s life, or a gift in a Will might fail because the property was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.