Two readers have asked for some more information about how wills and trusts can be challenged in a court.
I am happy to oblige but I add the warning that there are so many variable fact situations that you must take independent legal advice before making any hasty decisions.
The underlying principle of challenging a will or trust is that a court will not lightly interfere with the expressed wishes of the deceased testator or with the intention of the trust.
There is not an unfettered discretion for the court simply to apply its own mind to what is fair and just.
The first way to challenge a will is if it was not validly signed, witnessed or dated.
If you challenge that will successfully, then any previous will is taken as the operative will.
The second method involves proof that the testator was not of sound mind at the time he or she signed it.
That would invalidate the will.
Thirdly, you can challenge a will if you can show that the testator was under duress at the time.
In other words, he or she was forced to sign a will against his or her wishes.
This is another invalidating ground.
The fourth basis for challenge is under the Family Protection Act 1955.
This Act allows a closed family class of people to claim, "Hey, I should have been left something, or something more".
The only people who can claim are spouses, de factos, children, grandchildren, stepchildren and parents, provided that those parents were dependent on the deceased at the time of death.
No other person can bring a claim under this Act.
So, if you are the brother or nephew of a person who has died and think that you ought to have been left something in the will, then you are unable to bring a claim.
The application is for what is termed "further provision" from the estate and the Court can only make such an order granting you further provision if it thinks that there has been a breach of a moral duty to provide for you in the will.
Once the court has made that initial decision, then it can only make an order repairing that breach to the least extent necessary to alter the will.
In other words, the court is not permitted to exercise its own view as to what should have been done in the will.
It is only able to repair the breach to the least extent necessary.
The fifth way to challenge a will is under the Law Reform (Testamentary Promises) Act 1949.
This is an Act which allows compensation to any person who has carried out work for the testator in reliance on a promise that he or she will be left something in the will.
Anyone can bring such a claim.
The list of plaintiffs is not restricted, as in the case of the Family Protection Act 1955.
You have to prove that you carried out work or provided money or services in reliance upon that promise.
In other words, you have to show the broken promise by the testator but you also have to show that you did something in return for and in reliance upon that promise.
The courts say that there must be a clear "causal nexus" between the promise and the services.
The promise can be implied.
It need not be express, but it must be certain.
The court may then provide you with some form of relief.
It may not be as wide as strict contractual relief but the court will make an order in your favour if you can show that you relied upon the promise.
I now turn to the concept of challenging trusts.
Again, but in rare cases, you might be able to challenge the validity of the signing of the trust and whether the person who set about was of sound mind.
You then might find grounds for attacking a trust if it had been used for fraudulent purposes adverse to your interests.
Property stolen from you and transferred to a trust can be recovered or traced.
There are also fairly wide powers given to the High Court under the Trustee Act 1956 to control the operation of trusts where there is evidence of unfair or inappropriate operation of a trust.
In particular, section 51 allows the court may make an order appointing a new trustee in substitution for a trustee who has misconducted himself in the administration of the trust.
Section 64 empowers the court to authorise dealings with trust property and variations of trust.
There are strict guidelines and the application may be made by any beneficiary.
Finally, under section 68, any beneficiary who is aggrieved by any decision of a trustee, or who has reasonable grounds to anticipate any such a decision of a trustee by which he will be aggrieved, may apply to the court to review such matters.
The court may make such orders as the circumstances of the case may require.
Special rules apply to trusts in the relationship property field.
Upon separation, one spouse may feel aggrieved if what he or she thought was relationship property is in fact owned by a trust.
The Property (Relationships) Act 1976 has specific powers to alter or vary trusts, delicately known as the "trust busting" provisions.
But they are complicated and may involve two Acts of Parliament.
Basically, if a trust was established for the purpose of preventing the other spouse from gaining a share of the property put into the trust, then the court has the power to overturn that trust.
But since February 1, 2002 that task is a lot more relaxed. The court has only to find that the new trust has the effect of depriving the other spouse of a share in the property.
If that is proven, then the court has the power to "trust bust".
So there are a lot of specialist rules and detailed advice is necessary.
Michael Guest is a former lawyer and District and Family Court Judge.
