An eligible person may contest the Will of the deceased, if that person has been left out of the Will without proper maintenance and support from the deceased’s estate.
An ‘eligible person’, (EP), is usually the deceased’s spouse, de facto, natural child or de facto child, or a person who has been financially dependant on the deceased.
When considering whether the EP has the right to contest the Will, the Court will take into account a wide range of issues, including;
- Any contribution the EP made to the value of the deceased’s estate.
- Any statements made by the deceased as to who their estate would be left to.
- The standard of living which the EP is accustomed to.
- Any support provided by the EP to the deceased, during the deceased’s lifetime.
- The nature and extent of the EP’s relationship with the deceased.
- The financial position of any beneficiaries under the Will.
An overall riding factor is to establish that there is need. For example, if the EP is a multi-millionaire, and the deceased estate is worth less than $500,000.00, then it would be very hard to proceed with a claim as financial need wouldn’t be able to be established.
A few years ago, Supreme Court Justice Margaret McMurdo said in a lecture on deceased estates, “where there is a Will or no Will, we will show you the way”. In other words, if the Court considers the EP has met the required criteria and has established need, then the Court has the power to completely rewrite the deceased’s Will.
Of course, there are costs involved when bringing a Court action. However, should a claim be made against a deceased estate then usually the costs of the EP’s action will be paid from the estate first, before any other distributions are made to any beneficiaries. We have even seen cases where although the EP eventually lost their claim, the Court saw that the EP did have merit in bringing the claim in the first place, and so ordered that the EP’s costs were still to be paid by the estate.
Speak with us as soon as you can if you think you may have a claim against a deceased estate. Alternatively, if you are the executor of an estate and a claim has been brought against it, speak with us about defending that claim.