Protecting your inheritance

Protecting your Inheritance

We understand that if you are named as a Beneficiary in a Will and someone challenges the Will so that your inheritance will be reduced, possibly to nothing, it is incredibly upsetting and frustrating.

Whilst there may not always be something that you can do to stop the challenge being made, there is always something that you can do to limit or even prevent the challenge from being successful. We have developed a number of frequently asked questions which may help you.

Q. The Will was made the way it is for a reason. Why can it be challenged?

A. The Administration and Probate Act gives certain people a right to bring a claim for further provision to be made from an Estate. It is extremely common for people already named in the Will to be outraged that someone would try to challenge the wishes of the Deceased, especially when it means it will take their inheritance away from them.

Q If the Will can be challenged is there any point making one?

A Yes because the Will is the starting point in any claim. The starting point is never an equal split between children for example. The Courts take into account the terms of the Will and the reasons why the Willmaker made the Will the way he or she did. The Courts are well aware that people have the right to leave their assets as they choose by their Will and so the exercise of the Court’s power to interfere with a Will is only done very carefully.

Q. Who pays my legal fees to defend my inheritance?

A. If you are the Executor of the Will, you are required by law to uphold the terms of the Will and so you are entitled to pay your legal fees from the Estate. If you are not the Executor, it will depend on the circumstances of your case as to who pays for your legal fees.

Q I am not the Executor. Should I see my own Lawyer?

A. Yes. Whether the Executor is the Public Trustee or anybody else for that matter, they have a general duty to uphold the terms of the Will but they will not protect your specific interests as a beneficiary. Usually their defence to the challenge to the Will is not as vigorous as the defence you would mount if you were to engage your own Lawyer to protect your own interests.

Q I don’t agree with the way the Executor is acting. What do I do?

A. As an interested beneficiary, you have the right to be independently represented during any litigation at any time so you can have someone who is acting to further your interests only. If you are not happy with the Executor then by all means instruct lawyers to act just for you.