Estate litigation is a term describing when people – usually children – feel that they are getting less than they deserve from their parent’s Will, and challenge the contents of the Will.
Normally, such challenges are brought under the provisions of the Wills, Estates and Succession Act, which literally allow the court to change the provisions of a Will to give one or more children more money or property than the parents had intended.
This is a growing issue as we live in an aging population, and in a time when properties owned by that aging population are escalating rapidly in value – meaning that giving one child even a small percentage more of the property can literally translate to hundreds of thousands of dollars more for that child.
As a parent with property, you need to discuss the drafting of the Will carefully with an estate planning lawyer, to ensure that your wishes will be respected as much as possible. Failure to do so may leave the Will vulnerable to legal attack, and promote litigation and family discord amongst your children.
As a child, you should be aware of your rights to challenge a Will if you feel you have been unfairly provided for. Generally, the law expects parents to make adequate and fair provision for each of their children and not to unduly favour one child over another without good reason. The court does not consider gender to be a good reason to favour one child over another, or order of birth. If that, as an example, is the reason you have been unfairly provided for, you have a good chance of altering the contents of the Will. Further, even if those are not the reasons, you still may be able to alter the contents of the Will if there is no good reason to explain why one of your siblings has received much more of the property than you. If you feel unfairly provided for, you should seek advice from an estate litigation lawyer on your rights and how best to proceed. This does not necessarily mean that litigation and family discord will follow – it simply means you will know where you stand and be in a position to make an informed decision as to what is best for you.