Possible Will challenges
There are two broad bases to challenge a Will:-
- The first is an Application to vary the Will Terms to leave a greater share of the estate to a particular party, on the basis that adequate provision was not made for them;
- The second seeks to set aside the Will because it was not validly made based on lack of testamentary capacity or being made under undue influence.
Claim to Vary Will Terms
The Supreme Court can vary the Will of the deceased if proper provision is not made for his/her children unless there is some disentitling character or conduct; or unless their financial position is so good that they do not need any further provision from the Estate. A further crucial point is the size of the Estate, as the Courts have shown less inclination to vary a Will when the Estate is very small. There are time limits imposed for disinherited children to make a claim. Typically you must be notified within six months of death whether a claim is going to be made, and any claim must be filed in Court within 9 months of death. The outcome of these claims is uncertain and the cost is expensive. Most claims are settled out of court following Mediation.
Claim to Set Aside Will for Lack of Testamentary Capacity / Undue Influence
If there is no previous Will, then the estate would be distributed according to the Laws of Intestacy (which are set out under the schedule to the Succession Act).
If the Will was set aside on this basis, then the Estate would be distributed according to the terms of any Will made before the current one under challenge.
These challenges are much rarer and harder to succeed upon.
Contact our expert Estate Lawyers if you believe you have reasonable grounds to challenge a Will.