Estate Litigation & Challenging Wills
Estate Litigation Lawyers
ABKJ Lawyers have considerable experience in all aspects of estate law and litigation, both from the perspective of acting on behalf of the executor of a Will to uphold its provisions, and on behalf of beneficiaries and other persons who wish to challenge the terms of the Will.
Defending a Will
Many people think they should be able to distribute their estate under their Will as they see fit. The courts generally agree with that proposition subject to some qualifications.
The Executor of a Will can sometimes find themselves in the unfortunate situation whereby their position as a trusted friend or relative of the deceased, involves them in litigation over the estate to defend the Will. If this is the case it is important that you seek legal assistance quickly to be sure of your rights and obligations, and you get the right advice for defending the deceased’s wishes.
Estate law takes into account the moral responsibilities owed by some people, particularly parents, to family members and others to whom they may have made commitments during their lifetime. These obligations are recognised in legislation which entitles those to whom obligations are owed, to bring proceedings to see better provision from an estate than that which is set out in the deceased’s Will.
The success of any such claim depends upon whether the person bringing the claim satisfies the criteria of special need and the existence of any moral obligation. In the past, such claims have frequently been brought by people who fail to qualify under these criteria. However, the belief that the court will generally make an award for all party’s costs to be paid out of the Estate has encouraged those applicants to bring claims without merit because they have “nothing to lose”, and executors have frequently entered into settlements of those claims to ultimately save the estate the enormous cost of the proceedings.
That position has changed, and the courts are far less likely to award costs to an applicant who has brought a claim against an estate when it is clear that they always had poor prospects of success. Therefore, it is important for an executor to receive good legal advice on whether an applicant’s claim properly qualifies under the criteria set out in the legislation and whether a claim should be vigorously defended or negotiations entered into to bring the matter to an expeditious and cost-effective end.
We have considerable experience in assessing claims of this nature and providing advice to executors and claimants as to whether the terms of a Will are likely to be upheld by a court or if a potential claim will succeed.
There are things you can do in advance to avoid your Will being contested. For more information read our article on reducing the risk of estate litigation, or talk to one of our lawyers about drafting your Will properly the first time.
Contesting a Will
The tragedy of losing a loved one upon death can often be compounded by the realisation that the deceased’s Will contains unfair provisions which fail to recognise longstanding relationships and other commitments which may have been made through a deceased’s lifetime. Estate Law allows for a Will to be challenged when it may not adequately provide for those obligations and commitments arising in the deceased’s life.
Any person who feels aggrieved by the terms of a Will needs to obtain urgent legal advice as to their rights and entitlements as strict (and short) time limits apply to launching any legal challenge to the terms of a Will.