The death of someone you love is hard to deal with. Even harder is the discovery after their death and, contrary to your understanding, that you have not been provided for in their Will.
The starting point is that an individual is able to leave their Estate to whoever they wish. That said and to avoid unfairness New Zealand Law overrides this basic principle in cases where:
• The will-maker did not understand, through illness or misdirection of others, exactly what they were doing. Their testamentary capacity was lacking.
• An immediate family member (which can include partners, step or grandchildren) has been overlooked or bypassed.
• The deceased had a moral duty to recognise the disinherited person and failed to do so. This is a legal test which gives the Court a wide discretion to remedy potential unfairness in the Will.
If these obligations have been broken then a Court will, after having heard the issues, make a decision based on ensuring that the deceased did not break his/her moral obligation to the family member bringing the proceedings.
However, prior to this and with a view to avoiding Court proceedings it is often possible to negotiate a settlement. A Court case will be costly, take time and can damage the surviving family relationships. The value of the Estate can be significantly reduced or, in the worst cases, exhausted by such a dispute.
The focus of all parties ought to be to settle a properly founded claim by negotiation rather than litigation.
That said, it is impossible to determine how the Executors of an Estate and the Residuary Beneficiaries (those who have been left the majority of the deceased’s Estate) will react. It is necessary to hope for the best (negotiation) but to be prepared for the worst (litigation).
Whilst being able to assert a claim is paramount the cost of bringing this claim is also significant. Having the financial resources to be able to litigate and thereby assert a legitimate claim is often the barrier which precludes taking action. The unfairness remains unchallenged because of the cost of the argument, not its merit.
This is why in appropriate circumstances we are prepared to offer clients an option other than the usual pay as you go service.
If you wish and we agree then we can enter in to a Conditional Fee Agreement (CFA) – often referred to as a “No Win No Fee Agreement” by which we will usually fund the case for you, recovering our fees from the Estate and/or the monies that you recover from the Estate.
We can only advise you of the amount you are likely to receive and our own costs once we have assessed your claim.
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