Dealing with the death of a parent comes with legal and financial obligations that need to be addressed, such as dividing up the assets of an estate.

This can often cause sibling disputes over a Will, which may result in lengthy and expensive legal proceedings. When an estate is split between children, disputes can arise when the distribution is perceived to be uneven.

This can result in a sibling contesting the Will if they believe they were treated unfairly; for example, they may not have been included in the Will, or they believe they should be provided with more assets under the Will.

A sibling dispute over their parent’s Will may also result in a challenge. Unlike a contest, a challenge disputes the validity of the entire Will. Challenges often arise when the Will is identified as a forgery, was improperly signed or witnessed, or if the person writing the Will is deemed mentally unstable or made the Will under the influence of others.

A Will can be contested or challenged on the following legal grounds:

Testator’s Family Maintenance Claim

This is the most commonly used way of challenging a Will. A testator’s family maintenance claim can be made where a Will is considered valid, but a person believes they have not been adequately provided for under the Will. The court can assess this claim by considering:

• whether the deceased had a moral duty to provide for the claimant,
• whether the claimant has already been given adequate provisions,
• whether the claimant can provide for themselves,
• the potential effect the claim will have on other beneficiaries.

Lack Of Testamentary Capacity Claim

This claim can be made on the basis that the deceased was not capable of understanding the moral obligations of creating a Will. Successful claimants must be able to demonstrate the deceased’s lack of knowledge regarding the impact of their estate decisions.

Undue Influence Claim

A Will can be challenged if it is believed that the deceased was ‘unduly influenced’ by third-parties when making the Will. However, the decision-making process of the deceased is often difficult to prove and claimants should have substantial evidence before making a claim.

Breach Of Trust Claim

Beneficiaries of a Will can request to have an executor or trustee who is believed to be incorrectly administering the Will. The Court can remove the executor or trustee when they demonstrate a breach of trust, such as if they failed to distribute the estate properly or kept assets for themselves.