I have previously written in one of my newsletters about the many reasons why a will should always be prepared so that your wishes after your death in regards to your wealth distribution can be expressed.

As indicated previously, the absence of a will means that the distribution of your estate is governed by the Administration Act.

Now, I wish to discuss possible problems that may arise even if you have prepared a will.

The law allows a person who has been a dependant of someone who has died to challenge the contents of a will if that person does not receive a fair share of the deceased's property under the will. This can happen for example where a person has a wayward or estranged child and decides not to leave anything in their will to that child. There are certain things the said child can do to challenge such a will.

The Estranged or Wayward Person Applies to The Supreme Court

Under the Inheritance Act (the "Act"), a potential interested party if they believe that they have been shortchanged in the distribution of the estate, can launch an action in the Supreme Court. It is then up to the Court to decide whether the Court whishes to interfere with the wishes of the deceased person as written in their will. The Court will interfere if it thinks the will does not properly look after the needs of a person the deceased had a duty to provide for.

Who May Apply?

The Act states that the following interested parties may apply under the Act.

• the widow or widower;

• a person whose marriage to the deceased has been dissolved or annulled and who at the date of the death of the deceased was receiving or entitled to receive maintenance from the deceased, whether pursuant to an order of any court, or to an agreement or otherwise;

• a child of the deceased living at the date of the death of the deceased, or then en ventre sa mere ("a child not yet born but in the womb") ;

• a grandchild of the deceased who at the time of death of the deceased was being wholly or partly maintained by the deceased or whose parent the child of the deceased had predeceased the deceased living at the date of the death of the deceased, or then en ventre sa mere ("a child not yet born but in the womb") ;

• a parent of the deceased, whether the relationship is determined through lawful wedlock or adoption, or otherwise, where the relationship was admitted by the deceased being of full age or established in the lifetime of the deceased;

• a de facto widow or widower of the deceased who at the time of the death of the deceased was being wholly or partly maintained by the deceased, who was ordinarily a member of the household of the deceased, and for whom the deceased, in the opinion of the Court, had some special moral responsibility to make provision.

How is The Application Made

You should see a lawyer for advice as the law in this area is quite complicated.

Before submitting an application in, the lawyer will need to make sure that you will be able to prove:

• your relationship to the deceased;

• why you believe you are entitled to apply for a share or a larger share of the property;

• why you believe the deceased person did not provide well enough for you pursuant to the Will or the law.

Time Limits for Such an Application

There are strict time limits that need to be complied with to ensure that you are able to put in an application under the Act. You must apply within six months of the grant of probate of the will or, if the deceased did not leave a will, within six months of the grant of Letters of Administration.

In very rare circumstances, you may be able to apply for an extension of the 6 month time period. However, it is always a risk to delay any application under the Act. You should see your lawyer as soon as you believe you have a possible claim.

What Happens at the Hearing

Such court action can usually take months, if not years, before the matter is heard by a Judge. There is usually no oral hearing but an argument by your lawyers based on sworn documents prepared before the hearing. The parties are not usually asked to go to court to give evidence, but it can happen sometimes if the matters are unusually complex and the Judge believes that a fair hearing can only take place after listening to oral evidence of the parties. You must be prepared to accept the consequence of such a court action as very often, the already tenuous fabric of the family will be totally torn to shreds as a consequence of such an application.

How the Court Decides Whether to Change the Contents of the Will

After hearing the arguments on both sides the Court will consider the following possible matters in deciding whether to change the distribution of the deceased’s estate contrary to the will of the deceased.

• how any change to the Will could affect other people in the Will;

• the relationship to the deceased of other dependants;

• the needs of other dependants and those of the applicant; and

• the sort of property involved and its value;

• the ages of the surviving dependants;

• the way the applicant acted towards the deceased and their relationship in general.

No lawyer can guarantee to you how such an application will pan out. Each case is unique and the outcome often hangs on the judge who hears the case.

Therefore, when making a will, you should always consider who may launch any such challenge. It may be prudent to leave a token sum or give very good reasons in your will why no benefit is being given to the wayward relative.

Lastly, always inform your lawyers if you are leaving any body out of your will so that they can at least draft your will to minimise any challenges under the Act.

On the Light Side...
A woman awakes during the night, and her husband isn’t in bed with her. She goes downstairs to look for him. She finds him sitting at the kitchen table with a cup of coffee in front of him. He appears to be in deep thought, just staring at the wall. She watches as he wipes a tear from his eye and takes a sip of his coffee.

"What's the matter, dear?" she asks. "Why are you down here at this time of night?"

The husband looks up from his coffee, "Do you remember 20 years ago when we were dating, and you were only 16?" he asks solemnly.

"Yes, I do," she replies.

"Do you remember when your father caught us in the back seat of my car making love?"

"Yes, I remember," says the wife, lowering herself into a chair beside him.

The husband continues, "Do you remember when he shoved the shotgun in my face and said, 'Either you marry my daughter, or I'll send you to jail for 20 years?’"

"I remember that, too," she replies softly.

He wipes another tear from his cheek and says, "I would have gotten out today."