When a Sibling Chooses to Contest a Will – a Delicate Situation

Dealing with the Will of a parent can sometimes bring siblings into conflict with each other if one or more of them think they have not been treated fairly by their late parent.

In one case I’ve been involved in, the parent who died was estranged from one of her daughters, the only one still living. This daughter was therefore not named as Executor of the Estate, but was a beneficiary in part only.

The Executors were wanting to be very careful in their dealings with this daughter in order to minimise the chance of her contesting the Will.

The Executors wrote the letter to this daughter very carefully advising her only of the clauses relevant to her in the Will, and did not provide a full copy of the Will to her at any time. The letter was then checked by a lawyer before being sent to the daughter. This helped protect the Executors from any wrongdoing should she contest the Will at a later stage.

In New Zealand, a Will can be contested by a family member who believes they have a claim on the Estate. The legal deadline for lodging a claim is twelve months after probate is granted. Therefore, should the final bequests be distributed before a claim is lodged within this timeframe, it can cause issues for the Executors who may be liable through the courts.

There are mediation options available to families who find themselves in this situation and this can be preferable and more cost effective than going through the courts.

In the case referred to above, the estranged daughter did not end up contesting the Will. The Executors were careful to follow the legally advised timeframes on distributing the final bequests on the Estate though, just to be sure there was no comeback on them afterwards.

Following this experience, Swansong highly recommends in cases like this that parents consult with all siblings on the terms of the Will, in case they have not thought through areas that may have serious consequences after their death. Even in cases of estranged relationships it pays to ensure you keep people informed as this may prevent your Will being contested after your death, which would reduce the value of the Estate at the end of the day once all legal fees are deducted.

This case worked out in the end with no contest being lodged. However, my clients very much valued my input in this delicate situation. As an ‘outsider’, I am able to be less emotionally attached and can better advise Executors on how to protect themselves.