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Challenging a Will
By Law Space Published: 13/06/2009
A will is a “revocable disposition” of property intended to take effect upon death. It is usually recorded in writing. It must be signed by the person making the will, the “testator”, and must be witnessed by two independent people. All three must sign in the sight and presence of each other.
It is “revocable”, because it may be cancelled, amended, or updated at any time prior to death. In other words, you can change your will as often as you like – until, of course, you are dead.
It is a “disposition” of property, because it directs how the testator’s property is to be disposed of, or distributed, once they are dead.
The basic principle of a will is that the testator can distribute their property as they please, just as they could while they were still alive. Historically, there was no set rule about who you must, or must not, give your property to. It was a free choice.
However, from about the early 1900’s, many jurisdictions like New Zealand and Australia introduced “testator’s family maintenance” legislation. The legislation was designed to ensure that a testator made “adequate provision” for the proper maintenance and support of that person’s spouse, child, or dependant. If the will did not do so, then Courts were given the power to intervene and ensure proper maintenance and support was made for a dependant.
An obvious example would be a wealthy man, who dies, leaving nothing to his wife and infant children, but everything to his mistress. His wife and children would be left destitute. The Court was given the power to intervene, and effectively rewrite the will so as to make adequate provision for his immediate family.
“Spouse” means husband or wife, and includes a divorced spouse, if, at the time of the testator’s death, he or she was receiving, or entitled to receive, maintenance. In modern times, the law in many jurisdictions has been widened to include a de facto spouse.
“Child” includes a biological, step, or adopted child. It may also include a foster child.
“Dependant” means a person who was being wholly or substantially maintained or supported (financially or otherwise) by the testator at the time of death. It does not include an employee.
In practical terms, most “challenges” to wills come from adult children or relatives who are not, or were not, financially dependant on the testator at the time of death. The most common complaint is that the will is “unfair”, because it left more money to other people or charities, and not enough to the challenger.
The law does not insist that any provision be made for any particular relative or friend if they were not financially dependant on the testator. Nor does the law set out any formula, or guide, as to how you must, or should, divide your estate. Whilst there may be a strong moral obligation to be fair and equitable, there is no strict rule.
That takes us back to the fundamental principle that you can distribute your property as you please. Most testators have a good reason as to why they included or excluded people in their will. Rarely does a will give an explanation as to why it has been written the way it is. And of course, once a person is dead, you can’t ask them for an explanation.
More and more, Judges are being asked to second guess what a testator really meant, or their reasons for leaving everything to Bill, and nothing to Mary. While you are alive, you can do what you want with your money, but once you are dead ….
There are other technical rules which allow a challenge to a will. If the testator lacked “testamentary capacity”, or the ability to understand the nature and effect of the will, at the time he made the will, then it can be set aside. If it can be proven that someone exerted undue influence on the testator to write the will in a particular way, it may be set aside. And it the will wasn’t signed or witnessed properly, that might be another reason to challenge the will.
Other than obvious dependants, do you think that a will should provide for any set category of person? Or should everyone simply have the good grace to respect the wishes of the deceased? Please note that strict time limits may apply to commencing a challenge. Ask you lawyer.
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