Challenge to a Will
Disputed Deceased Estates or a Will – Resolution by mediation
Lawyers have told us that disputed deceased estates take up a disproportionate amount of the civil court time compared to other matters. This is unfortunate however there are many causes of a dispute for deceased estates. Below is a summation of common situations. It is not to be taken as legal advice. Should you be part of a deceased estate that is being challenged, are wanting to challenge a will, or there are problems in interpreting the will then it is best to seek professional legal advice prior to delivering any communication as the consequences of such communications can massive with irreversible damage created to family relationships.
I want to dispute (challenge) the will of a deceased person. What do I do?
Consider all your options prior to formally delivering instructions to your lawyer to issue the challenge. Consider what the long term consequences are of your proposed actions. Once you have your legal situation sorted then prior to instigating the formal challenge go and talk to the other beneficiaries. They may agree that you have been short changed (but this is highly unlikely). Suggest mediation to them. If this all falls on deaf ears and you feel strongly enough that you are morally right with your intentions then instruct your lawyer to instigate the challenge. Prior to giving this instruction make sure you get a written opinion from your lawyer as to what the chances of your success are and what each stage in the process is likely to cost. These challenges are not a cheap process. Once the formal challenge has been delivered and you have had a response, ask your lawyer to raise the issue of mediation with the other side.
I am a beneficiary to a will and or the executor of the estate and someone has instigated a challenge to the will. What do I do?
If this has not come through your lawyer or the lawyer for the estate then you need to get professional legal advice first. If possible take as many of the beneficiaries of that will as possible to the lawyers with you as this challenge will have an effect on them. Ask your lawyer for a written opinion as to what your chances are of defending the will against this challenge and what each stage of the process is likely to cost. Talk to your lawyer about the possibilities of taking this matter to mediation and get him to raise it with the other side.
There is problems in interpreting the will and the beneficiaries can not agree the estates distribution. How do I fix this?
It is common that these discussions become circular. That is they go round and round in circles never achieving an actual outcome or result. Lots of money gets spent on lawyers and little progress appears to have been made. Speak with your lawyer first and check with them that they believe that mediation is appropriate for your set of circumstances. We have heard of people changing lawyers due to their lawyer not supporting mediation. Depending on how your relationship is with the other beneficiaries, you may well approach them direct about resolving this with mediation or you can get your lawyer or us to contact their legal advisors
Some of the more common causes of disputes over an estate or a will, they are: -
1. There is no will at all
Unfortunately this is not uncommon. In the absence of a will who can decide what is fair and equitable amongst the surviving relations. Normally they can't so traditionally they have needed a judge to do it for them. Mediation is far more cost effective and quicker.
2. The final will being invalid
Virtually all of us have no say as to when we are going to pass away. It may be a sudden unexpected event, or after a prolonged illness that exceeds many months. There is the occasion when the person who is about to pass knows that their end is only hours away and they wish to change their will at the last moment, however due to time constraints the final will they dictate cannot be executed in the correct manner thus making it invalid. This can also happen should a person decide to change their will by self writing a new version that is also deemed to be invalid by the way it has been drafted, the process followed or the way it is executed. There are plenty of scenarios whereby an invalid will gets made. Should there be significant changes between this new invalid will and the previous valid version then there are legal and moral dilemmas between the benefactors as to what is legally right and what is morally right.
3. A party believes the will is grossly unfair
A surviving relative may have been considered in the will however they believe that what they have been left is grossly unfair taking into account all their circumstances and they are challenging the will to rectify what they perceive is wrong.
4. The final will is contradictory to our legislation
New Zealand has various pieces of legislation that stipulate certain peoples’ rights when it comes to survivorship of a deceased person. You cannot contract out of New Zealand law, thus the law overrides what the deceased has requested. It is similar to our employment law. An employer may put into an employment contract that the employee may be fired instantly if he or she is late three days in a row, however our laws give employees protection rights that would override such a clause. Should a person feel that they have been left less than what our legislation stipulates then they may have a legitimate case in challenging a will. Please take professional legal advice prior to making any such challenge. Typically a challenge will blow family relations apart which I am sure in most cases would not be what the deceased would have wanted.
No matter what the circumstances are, if you are involved with a challenge to the will you are in for a number of consequences. The stress it will cause you will be immense. In the initial stages you will be losing sleep at a bare minimum and this will be a constant source of irritation on your mind. The ironic aspect of this is that it is the same for the person instigating the challenge as well as the beneficiaries that are attempting to defend such a challenge. The only difference is when the stress starts. For the person making the challenge it is usually from the moment they realise that their perception is that they have been short changed in the will and for the defending benefactors it is upon receiving the communication that the will is to be challenged.
It is imperative to get good professional legal advice irrespective of which way you want to proceed (mediation or the courts). It is an idea to ask your lawyer to give you a written opinion on your situation asking them to at minimum cover in their opinion: -
- An explanation of the process you will have to go through and the likely time frames.
- What are the legal strengths & weaknesses of my situation.
- What are the legal strengths & weaknesses of their situation.
- What is my percentage chance of winning / defending this.
- A break down of the legal and court fees involved along with an estimate of a total.
Resolution by the Courts system for a will or a deceased estate
Traditionally the challenge takes a considerable amount of time with lawyers engaged on both sides deeply entrenched in their respective clients’ position. The only item that is usually clear to the individuals involved is that they don’t have a clue legally as to what is going on and the legal complexities are far too intricate for them to understand. It gets to a state whereby they leave it in the hands of their lawyers and they just go along with whatever their lawyer suggests or recommends. The challenge then gets resolved only once the lawyers have spent the value of the estate in their fees and there is now nothing left to fight over, or the expensive prolonged court battle (over one to two years) finally produces a result that is forced upon the parties who have little control at best over this outcome that leaves some parties hefty bills for the legal costs of this process and other parties far less than they expected once they have paid for all their legal expenses. The only true winners in these scenarios are the lawyers.
Resolution by Mediation for a will or a deceased estate
Mediation is a voluntary, timely, cost effective alternative to the aforementioned traditional challenge through the courts. Mediation is a private confidential process of self determination, whereby a mediator works with the parties in a proven process, facilitating negotiations between the parties towards them agreeing an outcome that settles this dispute. At the heart of the mediation process is the opportunity for each party to make a fundamental, objective reappraisal of the whole situation. These discussions enable each party to make a more fully informed objective assessment of its own position and interests, of the other side’s position and interests and of likely future developments and options. The reliability and validity of such assessment will develop and grow throughout the course of the mediation discussions.
Virtually all people who have not been a party to mediation previously cannot comprehend how they and the other side could possibly consensually agree to an outcome. As mediation is a confidential process it is hard to gather concrete statistics to the success rate however it is common belief that about 80-85% of matters taken to mediation settle successfully. The quicker the matter is taken to mediation the more cost effective it becomes. Unfortunately it is usual in deceased estates for mediation not to be considered until the legal bills for all concerned get way out of control for little or no progress on the matter and it is this financial driver that encourages the parties to give the mediation a go. It is a shame that good money is wasted on what is perceived as a complex legal situation of an analysis of the past when what is really important is finding a way forward that although not everyone will like, under the circumstances it is an outcome that they can live with.
I'm still not sure what to do about a disputed will or deceased estate?
It helps to talk. Go see your lawyer first then do phone us on 0800 746 225 for a confidential obligation free chat or fill in the quick confidential contact form above and we can call you.
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