Blog

Articles and legal news from the Atkinson Vinden Team.

Some Hope for Will makers. Contesting the Will is not always successful

News & Updates, Wills & Probate

Some family members who have not received adequate provision from a deceased estate can contest a will by making what is called a “Family Provision claim”.

Many consider this to be a positive legal avenue for people who have unjustifiably been left with inadequate provisions from an Estate, or for those with significant needs.  However, will makers are often left feeling uneasy that their Estate may be exposed to a lengthy legal battle.  This is of particular concern after a long family estrangement or a desire to recognise family members who have provided the person making the will with long term care. This is a particular issue which many of our clients raise with us when they come to make their will.

Will makers should find some comfort in the recent Supreme Court decision of Revell v Revell [2016] NSWSC which dismissed a son’s claim for further provision out of the Estate where adequate provision had already been made in the will.

The deceased in this case had left an Estate of $10 million to be divided under his will as follows: $1.5 million each to his two children and the remaining to his third wife, to whom he had been married for 22 years at the time of his death.

The claim in this case was brought by the son who sought a further $1.5 million to $3 million out of the Estate.  Amongst other arguments, the son claimed that he had significant financial needs that were not met by the legacy of $1.5 million left to him under the will.

The judge in this case made a number of interesting findings.  The judge held that the $1.5 million legacy was adequate provision and in such circumstances, the Court should not, without sufficient reason, dishonour the testator’s wishes.

The case should bring some hope to will makers that their wishes will be honoured, in cases where the will makes adequate provision for the disgruntled person.

Whilst it is impossible to completely shield an Estate from being exposed to legal battle, there are ways to limit this likelihood. Our Estates Team are here to assist you draft the best will possible. And if a court dispute arises over a will, we are well resourced to assist you with that too.