Wills are an important part of preparing for the inevitable. Sometimes, family members may contest the will after a person has passed away. The most common reasons to contest a will of a loved one are if you’re left out of it altogether or you don’t believe sufficient provision has been made for you.
This blog post sheds more light on the common reasons for contesting a will in NZ. Read on to learn what you can do if you would like to challenge the will of a family member or loved one.
You have not been included in the will
If a family member has died and hasn’t provided anything for you in their will, it’s possible to make a claim against their estate under the Family Protection Act. This claim will partly depend on your relationship with the deceased person, as there is a set list of family members who can make a family protection claim.
These include a spouse or partner, the deceased’s children and grandchildren, parents and, in some cases, stepchildren of the deceased.
You may consider making a family protection claim if the deceased has provided for you in their will, but you don’t consider it to be sufficient. The amount you are entitled to receive under a family protection claim depends on the circumstances of each case.
It is important to obtain legal advice about the chances of receiving more than what the will states before deciding whether to make a family protection claim.
The deceased didn’t have mental capacity
A family member might contest a will if the deceased lacked mental capacity when they signed their will. Evaluating a person’s mental capacity is a complex issue. In most cases, it requires expert medical evidence reflecting the deceased’s state of mind when they signed their will. Even with expert medical evidence, this type of claim can be fraught with issues, as not all experts agree.
If it is determined that the deceased did not have the required mental capacity when they signed their will, it becomes invalid. In this situation, the rules around dying without a will (see below) come into play. Alternatively, if the deceased had an earlier will, that will then determine the distribution of the deceased’s assets.
They died without a will
When a person dies without a will, there are set rules regarding an order of priority in distributing the deceased’s assets. If the deceased had a spouse/partner and children, the spouse/partner typically receives a fixed sum of compensation. The remainder is then distributed in shares of 1/3 to the spouse/partner and 2/3 to the children.
The distribution differs if the deceased had no children, spouse, or partner; it will depend on what family members the deceased left behind.
Seek Advice from Sharon Chandra
With all of the above claims, obtaining legal advice from an experienced family law specialist is important. A lawyer experienced in contesting wills can advise you on whether you have the grounds to make a claim and what compensation you will likely receive if successful. That way, you can make an informed decision about whether to proceed with making a claim.
Sharon Chandra can assist if you want advice about making a claim against a deceased person’s estate. If you feel a reason to contest a will, get in touch.