Can a wife contest a Will?
“My husband died 6 months ago and left $150,000 to one of my sons and to the other, our holiday home. I feel that this is a little unfair given that the price of the house is worth approximately $400,000 – $500,000. As his widow am I able to Contest the Will and even things up for my sons? I do not want my husband’s death to result in a Battle of the Wills.”
You are an eligible person under the Succession Act, as the wife of the deceased at the time of his death, to Contest your husband’s Will.
However, to be successful you need to show the Court that your husband did not make adequate provision for your proper maintenance, education and advancement in life. If your Family Provision claim is successful then the Court can make orders to increase your share of your husband’s Estate.
So, by making a Family Provision claim you may be able to increase your share of your husband’s Estate but this would not necessarily assist your son in receiving a greater share of his father’s Estate.
Your son who inherited the $150,000, is also an eligible person to Contest your husband’s Will, although this may have an adverse impact on your son’s relationship with your other son.
Another option is to sit down with all interested parties to your husband’s Estate such as your sons and the Executor of the Estate, to discuss whether there is a way to resolve the dispute without resorting to court proceedings. It may be appropriate to have these discussions run by a mediator, who is an independent third party trained in negotiations and resolution of disputes.
It may be that your son who inherited the property is amenable to the sale of the property and an equal division of the inheritance with your other son. Another solution may be you leaving a greater inheritance, to your son who inherited $150,000, on the basis that this is being done to compensate for the lesser amount he received from your husband’s Estate.
You should seek expert legal advice from a Wills and Estates lawyer on ways to resolve the potential Will Contest, without resorting to court proceedings which may affect the value of your husband’s Estate. As you are aware it is in everybody’s best interests to attempt to resolve the dispute without litigation or a negative impact on the family relationships. Particularly if the reason for the difference between the amounts received by each son has been caused by an increase in the value of the holiday home since the time your husband made his Will.
Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide and advise you on Contesting a Wills. Graeme offers a “No Win No Fees” policy for Contesting a Will in a Family Provision Claim.
