Parents can cut children and stepchildren out of their will – or exclude grandchildren, nieces and nephews – but this doesn’t always mean these individuals are comprehensively barred from receiving some of those decedents’ inheritance. If it can be shown that the child or other young relative was supported by the deceased at any point and that their exclusion from the will causes them to lack support, education or other needs, there may well be a claim.
If the claimant is a minor child, they typically cannot bring their own claim, but must be represented by their guardian ad litem, or a “next friend” (often a parent or legal guardian). This person should be acting in the child’s best interest. The solicitor on the record must file an affidavit stating that the guardian ad litem is a fit, proper person with no interest adverse to that of the child. (There is no remuneration for acting in the position of next friend or guardian ad litem.)
An infant may sue as plaintiff via his next friend, who must bear responsibility for the conduct of the proceedings and incurs liability for litigation costs. They are not a party to proceedings and are not entitled to appear in person, and must give written consent before being appointed as the next friend or guardian ad litem. Additionally, the court may appoint or remove a next friend or guardian ad litem at its discretion.
Any civil proceedings, including contesting a will, that are initiated by a child without the intervention of a next friend may be dismissed by the court out of hand, although they can continue if there is no objection from the defense. However, the solicitor on the record may be ordered to pay costs, which serves as disincentive for representing a minor child directly without a guardian ad litem.
However, in some cases, a young person may be deemed to be sufficiently mature to take action such as contesting a will on their own. If they have valid cause but no suitable family member to act as next friend, it has been suggested that they could be subject to the mature minor test, particularly if they are living independently and obviously competent. The court can determine if a next friend or guardian ad litem should be appointed.
Seeking to contest a Will? Contact Gerard Malouf & Partners, Will Dispute Lawyers today.