Articles and legal news from the Atkinson Vinden Team.

Challenging A Will (Family Provision Claims)

Wills & Probate

In this brief summary of Will dispute laws, Senior Associate Caitilin Watson explains some of the circumstances in which people choose to challenge the Will of a deceased loved one.

Author Ron Chernow once famously said, “I have developed a very strong partiality for the dead: they don’t talk back, they don’t sue, and they don’t have angry relatives.” The truth is that whilst the dead may rest, the assets they leave behind can be the source of serious family breakdown and even litigation.

If those left behind cannot accept how the Will leaves the deceased’s possessions, or they feel that they have a financial need that has not been appropriately provided for by the Will, there are circumstances where they may be able to challenge the terms of the Will. The most common kind of estate dispute is known as a Family Provision claim.

The law sets out a two-step test for potential Family Provision claims:

  1. Is the person on a specific list of people who are “eligible persons”? This list of eligible persons includes a spouse, de facto partner, child, former husband/wife and a person who lived with the deceased at some stage and was dependent upon them. Only eligible people can make a claim, not anyone who knew or was related to the deceased.
  2. Did the deceased make adequate provision for the proper maintenance, education or advancement in life of the claimant in their Will, or by the operation of the intestacy rules (when someone passes away without making a Will)? The Court will only make an order to change the effect of the deceased’s Will if it determines that the Will failed to adequately provide for the dependent.

The most common claims involve either the last partner of the deceased or a child of the deceased being cut out of the deceased’s Will. This may occur because the relationship broke down or the deceased felt that the person had received enough support over their lifetime. Unfortunately, if you pass away and your estate is in New South Wales, you no longer have carte blanche to leave your wealth as you please.

How does the court assess will dispute claims?

In order for the Court to assess these claims, the claimant, the executor and competing claims are required to provide sworn statements to the Court frankly discussing their personal and financial circumstances. The Court considers a range of factors to decide whether the provision, if any, was adequate for the person making the claim. The Court pays particular attention to the financial circumstances of the parties, rather than the emotional history between the deceased and their family.

Sometimes disputes about Wills also arise where there is an allegation that the deceased may have been pressured to change their Will, where perhaps they lacked capacity at the time their Will was made, or if the wording of the Will is confusing and could be interpreted in several different ways.

Should you receive a claim as an executor, you have an important role to defend the Will and assess how best to respond. Or, if you feel that the terms of the Will of a recently departed loved one are clearly out-of-step with your financial needs, or you suspect there may be a problem with the Will or how it has been worded, you may have a proper basis to a claim. As these disputes can be very expensive and stressful, it would be wise to call our Estate Team or Dispute Resolution Team for advice from the outset if you ever find yourself in this sort of situation.

Caitilin Watson

Telephone+ 61 2 8448 9825

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