Losing and grieving a loved one is never easy. The process of moving on can be complicated further when the estate of your loved one is the cause of conflict. These conflicts can arise between anyone – siblings, step-parents, aunts and uncles, grandchildren, and even non-family members – due to disagreements on distributing assets, and where one person is favoured over the other. Often, these challenges occur even if a valid Will is in place.
There are many grounds on which an estate may be contested, including:
- Under relationship property laws, a surviving spouse or partner can apply for a division of relationship property if they are not satisfied with what they have been left under the will.
- The Family Protection Act allows certain family members who have not been adequately provided for under a will to seek provision from an estate for support and maintenance.
- The Law Reform (Testamentary Promises) Act provides a mechanism for people to seek provision from an estate if the deceased promised to reward them for a service undertaken while they were alive but failed to record this in their will.
Questions as to the validity of a will can also include testamentary capacity issues, incorrectly signed or witnessed documents, or draft documents that nevertheless represent the deceased’s testamentary intentions. It is also possible to challenge how an executor or administrator has administered an Estate, and whether they have acted in accordance with the law. However, these issues are beyond the scope of this article.
It’s essential that you seek early advice when challenging a will or estate. There are time limits to consider and several ways to settle these issues without recourse to court proceedings.
Property (Relationship) Act 1976 Claim
A spouse or de-facto partner of the deceased may make a claim under this Act – sometimes more than one at once.
If the claimant had been in a de facto relationship with the deceased for three years or more, the general rule is that they are entitled to an equal share of all relationship property. There are exceptions to this rule – see our article here for more information about the Property (Relationship) Act.
On the death of the spouse or partner, the claimant may decide to take up their entitlements based on a Will left by the deceased spouse or partner or make a separate claim under the Property (Relationship) Act. There is a time limit on making this election, so it is important you have a chat with a lawyer as soon as possible.
Family Protection Act 1955 Claim
This Act provides a basis for a claim if a family member feels the deceased has inadequately provided for them in their Will.
The Court has the discretion to order provision from an estate if adequate provision for the proper maintenance and support of the applicant family member is not available from the estate under the deceased’s will or the intestacy rules.
The phrase “proper maintenance and support” has a specific legal meaning. It obviously includes financial support, but can also include recognition of belonging to a family and of having been an important part of the overall life of the deceased. Tikanga Māori can also be relevant – particularly if the application relates to Māori freehold land. Fundamentally, the Court will look at the circumstances of your family when exercising its discretion.
Applications can be made by several family members, including a spouse or partner, children and grandchildren, and even stepchildren or parents if they were being financially supported by the deceased and they felt they should have been provided for.
As with a relationship property claim, there is a time limit to claim under the Family Protection Act. You must bring your claim within 12 months of receiving the grant of probate (or letters of administration).
Testamentary Promises Claim
The Law Reform (Testamentary Promises) Act 1949 provides an avenue to make a claim if someone (indeed, anyone) rendered services to the deceased and in return the deceased promised that they would be provided for from their estate but did not make provision for them in their Will.
A testamentary promise is a promise from one person to another to provide recognition for services rendered to them during their lifetime. These services can include anything carried out above and beyond the reasonable obligations expected of a loved one. Examples of services that may be considered for recognition under the Act include:
- Financial assistance
- Assistance with properties or businesses
- Support and companionship
It can even include a promise not to make a claim against an Estate (say, for example, where one parent dies well before the other).
The claimant is not required to be related to the deceased – anybody can make a claim under the Act, including spouses, partners, ex-partners, children, stepchildren, other family members or non-family members. However, the claimant needs to prove:
- They rendered services to, or performed work for, the deceased in the deceased’s lifetime;
- There was a promise by the deceased to reward the claimant;
- A link between the services and the promise; and
- The deceased failed to make the promised testamentary provision or otherwise reward the claimant.
The promise for compensation can be expressed or implied, verbal or in writing. The Court will consider all facts in the case when making a decision.
We come across common situations where family members have been left out of wills entirely, and grandchildren have not been provided for despite their parents being deceased and where people have prepared draft wills but passed away before signing them.
It is essential to get early advice regarding these matters so that you are aware of the applicable time limits for raising a claim and any steps that can be taken to preserve your position.
For More Information
Don’t hesitate to get in touch with our family lawyers if you want further information or advice.
Additional information can be found here:
- Family Law
- Challenging a Will on the basis of a Testamentary Promise
- Family Protection Act Claims
- Upholding an Invalid Will