MCGREGOR

JM wrote: My father died leaving his entire estate to his two sons in his will. A woman claims that he had fathered a third child, X, who is a minor. He admitted that he had a brief relationship with X's mother, but said that X was not his child. He never supported X.

Can X's mother contest my father's will on his behalf?

Answer: Generally, the deceased's estate will be distributed in accordance with the provisions of his will. However, there are cases in which the law will intervene in accordance with the provisions of the Inheritance (Provision for Family and Dependents) Act. This ca the dispositions under a will for the benefit of a child, husband, wife or spouse of the deceased; or a parent, former wife or husband who was wholly or partially maintained by the deceased immediately before his death.

The act lists the categories of persons who are entitled to make a claim and the conditions which must be satisfied if the claim is to succeed. The persons entitled to claim include children of the deceased or persons who were treated as 'children of the family' who are under 18 years of age. If the children are older, they may still be able to claim if they are still in school or have some mental or physical disability.

Challenging the will

The short answer to JM's question is that X's mother may be able to challenge his father's will, but only if she is first able to prove, or obtain a declaration to satisfy the court, that he is/ was X's father.

In order to do this, she must show either that your father's name is on X's birth certificate or by obtaining a declaration of paternity.

To do the latter, X's mother must make an application to the Family Court or the Supreme Court, supported by affidavits to prove that she was involved in a relationship with your father at the time X would have been conceived. Blood and DNA tests would also be helpful in determining the issue.

If X's mother is able to cross that first hurdle and prove that your father is X's father, she will then have to make an application to the court under the act, for an order that the dispositions under your father's will do not make adequate financial provision for X's maintenance. This application must be made within six months after your father's executors take steps to apply for probate, unless the court allows a longer period of time.

When determining this application, the court will consider many factors, including the value of the estate, the needs of other dependents, X's relationship with him during his lifetime, X's needs and the manner in which X is expected to be educated.

If the application is successful, X's mother may receive a lump-sum payment, periodic payments, a trust fund oreven property on X's behalf as reasonable financial provision for his maintenance.