The most common reason to contest a will is through what is called a testator’s family maintenance claim. This is when a member of the family of the deceased who has not been mentioned in the will claims that the deceased has provided maintenance to them in life and therefore they should be recognized in the will.
Another way to contest a will is to challenge the validity of the will – was the deceased mentally able to make a will and was the will witnessed correctly?
Who can make a claim?
Only an eligible person, as defined by the Administration and Probate Act (section 91) can bring a claim. There are two tiers of ‘eligible persons’.
Tier One – Spouses and children
The following people can make a claim:
Tier Two – Other eligible persons
The following people can also make a claim if they can show they were wholly or partly dependent on the deceased for their proper maintenance and support:
What is the test?
The test as outlined by the courts is ‘did the testator (the deceased) have a moral duty to provide for the applicant, and having regard to prevailing community attitudes, has the testator adequately discharged their duty?’
How will the courts apply the test?
When deciding whether an applicant has a claim, the court puts itself in the shoes of the deceased and considers what he or she ought to have done in all of the circumstances of the case, treating the decease for this purpose as ‘wise and just’, rather than as a foolish parent or spouse.
What factors will the court consider to determine a claim against the estate?
The success of any claim will be influenced by such issues as:
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