Issues and claims arising from death

Relationships (Family)

A death in the family and the Will left by that person (or when there is no Will) can often give rise to a number of potential issues/disputes. Often family issues and tensions that have simmered below the surface for years come to light at this time.

We come across many disputes that can involve one or more of the following:

Testamentary Capacity

  • In order to make a valid Will, a person must have the mental (testamentary) capacity to do so.
  • Most commonly, a person lacks testamentary capacity when they suffer the onset of dementia, or some mental disability that prevents them managing their own affairs and making rational decisions.
  • Where there is doubt about a person’s capacity to make a Will, a medical opinion should be sought.
  • Where after their death, it is found that a person lacked testamentary capacity, the Will that they made while under that incapacity will be invalid.
  • Rather than the final Will that they made applying, it will be the last Will they made while still having testamentary capacity that will prevail.
  • The trustees of that person’s estate must establish that the person had testamentary capacity at the time they made a Will if the issue is raised.

Undue influence

  • Sometimes a person makes a provision in their Will leaving something to someone else because of undue pressure put on them by that person to make that, or some provision, for them.
  • A person on whom the person making the Will is dependent for support, welfare, companionship and care may be in a position to influence that person in a way that overcomes the real wishes of the person making their Will.
  • Someone who may still have testamentary capacity, but is, for example, in the early stages of dementia, or is old and frail, may be more susceptible to undue influence.
  • If undue influence can be shown, the provision made as a result of that influence, will be deleted from the Will, but otherwise if the person had testamentary capacity the other provisions of the Will usually prevail.

Property relationship claim

  • The surviving spouse or de facto partner of a person who has died has the right to bring a claim under the Property (Relationships) Act.
  • Where the marriage and/or de facto relationship exceeds a period of three years, relationship property will generally be divided equally.
  • Any claim is subject to the provisions of any valid agreement the parties made during their lifetime to contract out of provisions of the Property (Relationships) Act.
  • In most cases, a person who brings a claim against their deceased spouse or partner will forego any provision made for them in the deceased’s Will.

Family protection claim

  • Certain close relatives have the right to bring a claim against the deceased’s estate.
  • Commonly, those close relatives are a surviving spouse or de facto partner, a child (whether dependent or adult) and grandchildren.
  • A surviving spouse, or de facto partner, can bring a family protection claim in addition to a property relationship claim.
  • The success, extent and amount awarded in a claim will depend on a number of factors, including the circumstances of the claimant, the size of the estate and competing claims against the estate.
  • A claim can be brought where the claimant is left either nothing under the Will or the provision made for them is inadequate.

Testamentary promises claim

  • A testamentary promises claim can be brought by any person who can show that during the lifetime of the person who has died, the claimant provided work or services for that person and that person indicated directly or indirectly that he or she would make provision for the person who performed the work and services.
  • A testamentary promises claim where the grounds can be made out can also be brought by a family protection claimant.

We are happy to advise you in relation to these or any other matters arising out of the death of your loved ones.  Feel free to contact our relationships team for further advice.

All Articles