08 Jun 2016

Will dispute – what makes a successful claim?

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The basic principles of a will dispute are fairly straightforward.  The hard part is applying them to a claimant’s specific situation.

As I said in my article about the basics of a will dispute, the Court may order that “such provision as the Court thinks fit” be made for a claimant.  This is if it is of the view that the deceased’s will does not:

… make adequate provision from his estate for the proper maintenance, support, education or advancement in life of [the claimant] …

This is a two-stage process. Firstly, the Court must determine whether the applicant has been left without “adequate provision for [his or her] proper maintenance, education and advancement in life”.

You may see this described as the “jurisdictional question”.

If the Court finds that there has not been adequate provision, the Court must then decide what the provision should be.

The Court must, in effect, decide what is “adequate” and “proper”. This is done on a case-by-case basis, and is highly dependent on the facts of each case.

The Court places itself in the position of the deceased.  It must consider what he ought to have done in all the circumstances of the case.  For this, the deceased is considered as “a wise and just, rather than a fond and foolish,” person.

Some of the matters that the Court takes into account are:

  • the applicant’s financial position;
  • the size and nature of the deceased’s estate;
  • the totality of the relationship between the applicant and the deceased; and
  • the relationship between the deceased and other people who have legitimate claims on their estate.

Each case is going to be different, and the facts of each case have to be carefully considered.

For example, a claim by an adult child with a secure, well-paying job and a home is likely to be treated quite differently to a claim by a child with no assets and a low income.

A claim against a small estate is likely to be treated differently than one against a large estate, where there is more money to satisfy all legitimate claims.

A claimant has to carefully weigh up all of the relevant factors before commencing a claim.

In my next update, I will discuss some specific will dispute situations.

For more information, see my previous articles on the basics of a claim and who can claim.

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About the Author


Peter Nevin is a Partner in our Commercial Litigation practice group. He specialises in commercial and general litigation, and provides detailed advice on industrial relations issues to both employers and employees. He also provides advice and representation in estate disputes on behalf of executors, beneficiaries and third party claimants.

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