Ademption
This is a legal term involved sometimes in contesting a will and occurs if the subject of a specific bequest cannot be found among the estate of the deceased then that gift fails by “ademption” and the beneficiary does not receive anything pursuant to that bequest in the will.
Burden of evidence in proving the sound mind of the testator
The person putting forward the will as valid bears the burden of proof, on the balance of the whole of the evidence that the testator was of sound mind, memory and understanding.
Applicants in immediate need
When contesting a will, if an applicant is in immediate need of funds, the court may make an interim order even though the application has not been determined. The amounts in that interim order must be no more than theamount the court considers would be awarded by a final order.
Disabled beneficiaries
t is possible to contest a will on the grounds that a bequest to a mentally or physically disabled beneficiary is inadequate. It is necessary to show the court, that as a result of the disability, the earning capacities of the applicant are limited or that their financial needs are increased.
Revival of a will
When a will is revived it brings back into effect a will which has been revoked or become ineffective for some other reason. The will then takes effect from the date of the revival.
Applicants who have a criminal record
A convicted criminal may contest a will if they meet the other conditions required of all applicants however under no circumstances can such a person benefit if their crime resulted in the death of the testator.
Effect of bankruptcy
When contesting a will if the applicant is bankrupt he still retains a personal right to contest a will pursuant to family provision legislation. If the bankrupt is a beneficiary the provision in the will does vest in the Trustee in Bankruptcy to pay creditors and all property transferred to the beneficiary vests in the Trustee. The same applies if the claimant obtains provision whilst bankrupt but not once he or she has been discharged.
Previous provisions made by the deceased
Previous provisions made for an applicant contesting a will are relevant to the proceedings. However the benefits given to applicants during the lifetime by the deceased are only one factor to be considered and not a decisive factor to the court.
Effect of pre-nuptial agreements
When contesting a will it should be remembered that It is impossible to contract out of family provision claims so provisions in pre-nuptial agreements may be relevant to, but are not binding in those proceedings. They will be considered by the court and may be relevant to show what the parties expected and considered fair at the time.
Eligibility of ‘members of a household’ to contest a will
When contesting a will a ‘member of a household’ of which the deceased was also a member is only eligible to contest the will if dependency on the deceased at some time can be shown. The ‘household’ must come within the usual definition of the court of that term before the person can be declared eligible. A member must share living arrangements on a regular basis with the deceased.
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