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 civil court time, compared to other matters. This is unfortunate, however, there are many causes of disputes regarding 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 a will, then it is best to seek professional legal advice prior to delivering any communication as the consequences of such communications can cause massive, irreversible damage 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) and 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 the will, as possible, to the lawyers, as this challenge will have an effect on them too. 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 or her to raise it with the other side.
There are problems in interpreting the will and the beneficiaries can not agree on the estate's distribution. How do I fix this?
It is common that these discussions become circular. That is, they go round and round without achieving an actual outcome. Lots of money can be spent on lawyers with little progress being made. Speak with your lawyer first and check with them that they believe 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 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, the relations can't decide on this so, traditionally, a judge is needed to achieve this. However, mediation is far more cost effective and quicker.
2. The final will is 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. On occassion, a 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 is not 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. They may then challenge the will to rectify what they perceive to be wrong.
4. The final will is contradictory to our legislation
New Zealand has various pieces of legislation that stipulate certain people's 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 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 a will, you are in for a number of consequences. The stress it will cause you will be immense. In the initial stages, you may lose sleep and, at a bare minimum, it 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 they feel short changed 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 a good idea to ask your lawyer to give you a written opinion on your situation which includes, at a minimum:
- An explanation of the process you will have to go through and the likely time frames.
- What are the legal strengths and weaknesses of your situation.
What are the legal strengths and weaknesses of their situation.
- What is your 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 achieving an outcome that settles the 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 mediation a go. It is a shame that good money is wasted on, what is perceived as, a complex legal situation involving 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 HELP ME (0800 435 763) for a confidential, obligation free chat or fill in the quick confidential contact form above and we can call you.