Can I challenge a Will? Family Provision Claims. There are two types of claims against Wills and Estates, namely – That the Will is invalid;
26 October 2021
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Can I challenge a Will? Family Provision Claims. There are two types of claims against Wills and Estates, namely – That the Will is invalid;
A Will is a legal document which sets out how you as the Will-maker (“the Testator”) want your assets to be dealt with after you
That is a very interesting question and one that depends on several things. In NSW, an Act of Parliament called the Succession Act, 2006, sets
There is something about Wills that sometimes brings out the worst side of human nature. Wills have the power to divide even the closest of
A Family Provision claim is the main type of claim for challenging Wills or Contesting Wills or even the amount to be received on where there is no Will (on intestacy), where someone thinks proper provision has not been made for them.
Note that this is not a claim that the Will, if there is one, is itself invalid.
For example, a client’s parents separated at the time of her birth and it was not until she was a teenager that she was able to locate and meet her biological father. A close relationship built up between them over the years, but her father never got around to changing his Will to make provision for her.
After his death she got appropriate advice from Will Lawyers Central Coast and made a family provision claim that settled out of Court. It resulted in her receiving a substantial sum from her father’s estate as he no doubt would have wanted, and the estate also paid all of her legal costs, so she was not out of pocket. This is why it is so important to seek legal advice from experienced Will Dispute Lawyers.
The time for Contesting Wills in NSW for a Family Provision Claim is within 12 months from the date of death of the deceased.
Before a Judge will hear a family provision claim (also referred to as Contesting Wills) it must first be mediated before a Registrar of the Court to attempt to settle it out of Court. Settlement rates for these types of cases are high, so the chances of having to actually go to a Court Hearing are relatively low.
Although the Court will not re-write a person’s Will, it can alter a deceased person’s Will in favour of an “eligible person” in one of 4 broad categories of relationship to the deceased.
The four categories of eligible person are:
Just being an “eligible person” is not enough to succeed, and the person challenging the Will by a Family Provision Claim (known as “the Applicant”) must also prove to the Court that the provision left for them under the Will, if any, is inadequate for their proper maintenance, education and advancement in life.
If you are Contesting or Challenging a Will, the law requires that the applicant must also prove they have a “financial need” and the deceased had a moral obligation to make provision for that need.
If the Court decides that the applicant has been left without adequate provision it will then consider what provision should be made for that applicant’s maintenance education and advancement in life.
The Court will consider such matters as the size of the estate, the financial and other needs and circumstances of the applicant, and the circumstances of any other beneficiaries of the estate.
Our expert Will Dispute Lawyers Central Coast can assist you to know where you stand, helping you to understand the steps to be taken in Contesting Wills in NSW. There’s no need to rely on friends, family, or acquaintances who are not will dispute experts…find out where you stand today and rest easy knowing what your options are.
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