Challenges to your will
How can my will be challenged?
A will can be challenged if it is not legally correct. For example, if it was not made and witnessed correctly (see: “Is my will valid”).
Even if your will is legally valid, it is still subject to three Acts. If a challenge is successful under one of these Acts, the court will change your will as needed, but the rest of the will remains valid. These Acts also apply if there is no will.
- Family Protection Act 1955 – Certain family members can apply to the courts under this Act saying they were not looked after adequately in the will or by the laws of intestacy.
- Testamentary Promises – If someone worked for you or provided services, and in return you promised to provide for them in your will, but you break that promise, they can apply to the courts under the Law Reform (Testamentary Promises) Act 1949.
- Relationship property – Your spouse or partner can choose to apply to the courts under the Property (Relationships) Act 1976 to receive half of the relationship property if they would prefer that instead of what they were left in your will.
For more information about how someone could challenge your will, see: “Challenging a will”.
How can I safeguard against my will being challenged?
A lawyer can help you create a will that is less likely to be challenged. You can also choose to:
- Gift your property before death – this way, the property is no longer part of the estate.
- Put your property into a trust during your lifetime – however, this can be a complicated process, and sometimes the estate can reclaim some of this property. You should ask a lawyer for help setting this up.
- Make a contract to leave property by will – this can then be enforced like any other contract.
- Include a written explanation of your decisions – this will not necessarily prevent a claim, but it will help the court understand your intentions. This is sometimes called a “Memorandum of Wishes”.