Call 07 834 6000

The 3 most common reasons a Will can be challenged

15 May 2020

  1. A Will has been drafted incorrectly

Handwritten Wills and do-it-yourself Will kits can be attractive options for cost conscious Will makers. However, an estate can end up footing a hefty fee when a person passes away and a Will has errors or is unclear.

The Courts have very strict rules about how Wills must be drafted, signed and witnessed. If a Will does not meet the Court’s requirements when probate is applied for, extra documents may need to be filed in Court and, if the terms of a Will are uncertain an application may need to be made to the Court to interpret the Will maker’s intentions.   An experienced lawyer will be able to draft your Will to ensure your wishes are carried out and probate is administered quickly and smoothly.

 

  1. The Will maker did not have mental capacity to make their Will

The Court presumes that a Will maker has mental capacity to sign a Will unless the beneficiaries prove otherwise. If a beneficiary believes a Will maker lacked capacity at the time they made their Will, they can apply to the Court and challenge the validity of the Will.

When taking Will instructions, lawyers will be careful to ensure that a Will maker has the required mental capacity to sign a Will. If a lawyer has any concerns they will ask that their client obtain a certificate of mental capacity from their doctor confirming their capacity to sign their Will. The certificate can be used as evidence in Court if the Will is challenged.

 

  1. A Will does not make reasonable provision for someone

The Courts have special powers to re-write a Will if the Will maker has breached their obligations under the Family Protection Act 1955. This act gives the Court discretion to make sure certain family members are provided for if it’s found that a Will maker has breached their moral duty. This applies in situations where an individual was financially dependent on the Will maker and the Will maker has not made proper provision for them in their Will.

There are factors the Court takes into consideration when considering claims. These include periods of estrangement and breakdowns in relationships which will weaken the moral duty owed by the Will maker. Equally, financial dependence on the Will maker and caregiving duties provided to the deceased will strengthen a claimant’s case. Occasionally a Will maker won’t want to make provision for a certain family member who they have a moral duty to provide for. In this case their lawyer can draft a Family Protection Act Statement which will set out the reasons why they have not provided for a certain person, and this can be used in Court in the event the Will is challenged.

 

Kerry Reed is a Senior Solicitor in the Private Client Team at Norris Ward McKinnon. To contact Kerry, you can email her at kerry.reed@nwm.co.nz or click here for further information.