Contesting a Will
CONTESTING A WILL
I have been left out of a will, what can I do?
Bereaved family members have a right to be provided with a copy of the will and can obtain this by asking the executor or their solicitors. If you were expecting to receive something under a will but have been left out, you have six months from when the person dies to notify that person’s executor that you want to contest the will, and a further three months to file a claim contesting the will with the Supreme Court. This type of claim is called a family provision claim. To contest a will, first obtain legal advice and discuss your claim with the executor to see if settlement can be reached to avoid going to court.
What is involved in contesting a will?
Complete the claim form then file that claim within the six-month timeframe in the Supreme Court. Before a matter gets to a court hearing, parties will be encouraged to discuss the matter through settlement conferences or at mediation. Try to reach an agreement because once the matter goes before a judge, you have no further control over the outcome. Litigation is always a gamble so if you are able to agree, it takes the uncertainty out of it. If a hearing is required, the Court makes a decision on the claim by weighing up a lot of factors, such as your relationship with the person who has died, what contact you had with them, your financial needs and whether there is any evidence about why you were left out. The process is expensive in both time and money so it is usually only worthwhile where the estate is a reasonable size.
I want to leave someone out of my will, how can I ensure they can’t get my money?
Unfortunately, there is no way to be certain that an eligible person will not be able to successfully contest your will. However, if you do want to leave someone out, there are things we can do in drafting your will to assist in heading off a potential claim. As well as offering advice about the consequences of leaving someone out and the possibilities of them successfully contesting your will, we can assist you in wording your will and presenting evidence which may assist in successfully defending a claim, if one is made. If a claim is made after you pass away, we can assist your executor in defending that claim and honouring your wishes.