Understanding the Legal Process for an Auckland Lawyer to Challenge an Estate
Challenging an estate is a surprisingly common issue. It is wrought with emotion likely to split a family or the nominated beneficiaries. It is also a complex legal process, not to be undertaken lightly. It needs deep legal skills as well as a command of understanding human psyche. As a result, it is rare to come across an Auckland lawyer to challenge an estate.
Here we look at some of the issues, why challenges come about, and how an Auckland lawyer to challenge an estate operates.
Why Challenges to an Estate Happen
There are typically three reasons that cause a challenge to an estate.
1 Contents of a Will
In this case, one or more beneficiaries might dispute how a will was allocated or divided between the family members.
2 The Administration Of An Estate
Sometimes, especially if an executor is a family member rather than a lawyer, the execution of the will can become confused, drawn out, or not identify assets to be distributed.
3 Potential Beneficiaries
From time to time, people may not be included in a will. This might be intentional or an oversight. In either case, a potential beneficiary will want to see justice as seen in their eyes.
All of these situations come under a range of New Zealand’s succession laws including the Wills Act 2007, the Administration Act 1969, and the Family Protection Act 1955. The lay out the legal framework for estate disputes across New Zealand.
Whichever the reason, a person or persons making a claim will need the help of an lawyer experienced in challenges to an estate.
The Process for Challenging an Estate
After being contacted by a client, the lawyer will review the will and any associated documents such as property titles, savings records, investment holdings, and more.
They will also look at any debts or liabilities the deceased had. These need to be deducted from the asset value.
They will also assess the client’s eligibility for making a claim. Commonly this is seeing if they are a spouse, child, or dependent. The lawyer will explain possible grounds for challenge, such as undue influence, lack of testamentary capacity, improper execution, or claims for further provision under the Family Protection Act.
The Estate Challenge Strategy
If the lawyer is satisfied that there are grounds to make a challenge, they will discuss how this will be carried out.
There are various options including, at the first stage, negotiating with the executor or other beneficiaries to reach a settlement. A bit of understanding can save a lot of time and money instead of going to court.
Mediation is an alternative form of dispute resolution to reach an efficient and amicable outcome.
If negotiations fail, the lawyer will prepare and file the necessary court documents.
In this situation the lawyer will gather evidence, draft affidavits, and make presentations in court or before the judge. The evidence may include obtaining medical reports, getting witness statements, and expert opinions to show a lack of capacity or undue influence from a third party.
The lawyer will present the legal arguments based on precedents and statutes, aiming to persuade the court to uphold or overturn the will.
The lawyer must also be open about the potential costs of litigating a challenge to an estate. It is not easy, nor quick, which means that it is expensive.
They will also explain the possible recriminations within a family if the case goes ahead.
Summing Up The Role Of An Auckland Lawyer To Challenge An Estate
The lawyer’s ain role is looking after their client’s interests. This may be going to court as an ultimate step, or the lawyer might also advise against undertaking any legal action because of the strife that it might cause, or the likely costs compared to the net assets.
If you feel that you might want to consult an Auckland lawyer to challenge an estate, McVeagh Fleming in the CBD has a team of lawyers who can help.