Disputed Estates

After someone dies there is often some shock or disappointment with the provisions which are made in a will or if the person died without a will, the way that the estate will be divided after death.


Prior to 1 January 2015, the Administration and Probate Act Section 91 (1) allowed a person ” ….. for whom the deceased had responsibility to make provision .. ” to make application to the Supreme Court for a share of a deceased’s estate. Whilst the Supreme Court took a conservative view of the interpretation of this provision, there were claims more numerous and less justified than previously was the case.


The legislation has now been substantially changed since 1 January 2015. The only person that can now challenge a Will is an “eligible person”. An “eligible person” is defined under Section 90 of the Administration and Probate Act but the operation of that definition is further refined by the Application of Section 91 (2) (b), 91 (4) (c) and (d) and various other amendments to the Act.


Section 91 (1) gives a person who is an “eligible person” the right to make application to the Supreme Court for provision out of the estate if that person is not included in the testamentary benefits conferred by the Will of the testator.


Children under the age of 25 years are “eligible persons”. Children over the age of 25 years who are dependent upon the testator or who suffer from a disability or do not have their own financial resources would also qualify as “eligible persons”.


People who are not direct relatives but who reside with the testator and are ordinarily members of the testator’s household or who have received regular financial support from the testator will qualify as an “eligible person”.


Contrary to what many people believe, if you conferred benefits upon someone while you are alive, this actually activates an entitlement for them to claim against your estate. Unless there is some specific agreement, the assumption would be that there is a dependency and therefore an entitlement.


Any challenge to a Will under the terms of the Administration and Probate Act must be brought within 6 months of the Grant of Probate.


Disputed Estates at Prior Law are handled by the lawyers in the Wills and Estates team, which is overseen by Rosemary Prior, Accredited Specialist in Wills and Estates, Partner:


Rosemary Prior

Jim McCarthy

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