Family Provision and Will Disputes
The Will of a deceased person can be contested where family members and certain other persons believe that they have not been adequately provided for. Whilst the law recognises a person’s right to make a Will that is unfettered, the law does allow a Will to be contested on certain grounds.
The new provisions of the New South Wales Succession Act 2006 ensure that adequate provision is made for members of the family of a deceased person, and certain other persons, from the estate of a deceased person.
Orders for family provision must be made within 12 months after the date of death of the deceased person.
Persons who are eligible to apply include:
- a person who was the wife or husband of the deceased person at the time of the deceased person’s death;
- a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death;
- a child of the deceased person;
- a former wife or husband of the deceased person;
- a person who was wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person or was a member of the household of which the deceased person was a member;
- a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
In seeking a family provision order, the matters that may be considered by the court include, but are not limited by, the following:
- Whether the Will of the deceased was unfair;
- The financial resources and financial needs of the applicant;
- The nature and extent of any obligation owed by the deceased to the applicant;
- Whether the applicant was financially dependent on the deceased;
- Contributions by the applicant to the deceased persons estate or the welfare of the deceased person or their family;
- Whether the applicant was being maintained before the deceased person’s death;
- The character and the conduct of the applicant before the deceased person’s death;
- Whether the deceased was mentally capable to understand what they were doing when drafting the Will.
If you feel that you have been unfairly provided for under the Will of a loved one, please contact us to discuss your options.