Who can dispute a will?

Date: Aug 30, 2011

When it comes to the matter of wills and estates, many people might think that the deceased would take the time to consider the needs of friends and family members before setting about the process of drafting the document.

But sometimes a valid will is made that fails to take into account the true financial positions of those it mentions - or can fail to mention them at all.

In these cases you may find that the advice of a wills and estate lawyer can be invaluable, as they can provide you with in-depth knowledge of the Family Provisions Act 1982 (FPA), now the Succession Act 2006.

The FPA governs the division of the collective goods, land, funds and other assets owned by the deceased - known as an estate.

It imposes a requirement on the maker of a will and to ensure that certain eligible persons are adequately provided for.

The law also makes provisions for specific people - usually partners and children - to be able to challenge a will under certain circumstances.

When entering an estate dispute, it is important to note that the FPA follows a number of guidelines in determining a claim's eligibility.

For a start, it usually takes into account the relationship that existed between a claimant and the deceased before delving into any relevant financial dependencies.

This means that surviving spouses and children of the deceased are usually eligible to apply, as are de facto partners - including same sex couples.

Persons who can be shown to rely financially on the will maker may also be able to claim, although the FPA may restrict the amount gained in certain cases.

Eligible persons can include foster children and dependant grandchildren as well as other members of a household.

Once eligibility has been established, you may need to be able to prove to the courts that the deceased has not provided adequate provision for your maintenance, education and advancement in life.

If a court agrees with your claim, it may make provisions for you to receive a portion of the estate in question subject to any competing needs of other claimants or beneficiaries and the ability/size of the estate to meet your needs.

There are no definitive rules regarding the exact nature of this division - each claim is dealt with on its own merits - and the court will try to take into account the merits of competing claims.