What is a Will ?
A Will is a valid and legally binding statement as to how a person wants their assets dealt with on their death. A Will may also express intentions and instructions on matters the person wishes to be attended to on their death. Everyone over 18 should have a Will to have input in the way that their assets are distributed. The cost to have a properly drafted Will is a small investment in the future, to ensure that your wishes are carried out in the simplest and easiest way for your loved ones left behind. A failure to have a properly drafted and current Will often results in complications, stress and significant legal costs being suffered by your loved ones.
If I’ve been left out of a Will, can I contest it ?
A Will can be contested by someone who is recognised by the law as an “eligible person” if that person is unfairly or unreasonably left out of someone’s Will, partially or entirely. An eligible person might include a wife/husband, de facto partner, child, former wife/husband, a dependant grandchild or someone in another type of close domestic/personal relationship with the deceased.
How do I contest a Will ?
There are two ways in which to contest a Will. The first is to challenge the validity of the Will and this would apply if:
the Will is not the last Will made by the deceased
the Will is a forgery
the Will does not satisfy the legal requirements
the deceased did not have the mental capacity to make a Will
there was undue influence on the deceased at the time the Will was drawn up
The second way is to apply to the Court for family provision orders under the Succession Act 2006. This will apply if the deceased left someone out of their Will or did not make adequate provision for them in their Will.
What factors will the Court consider when deciding if I’m an “eligible person” and how much provision I should receive ?
There are many factors that the Court will take into account, including:
the nature and duration of the relationship between the applicant and the deceased
the nature and extent of any obligations or responsibilities owed by the deceased
the nature and extent of the estate
the financial resources and needs of the applicant
any disability of the applicant, any other applicant or beneficiary
the age of the applicant
any contributions made by the applicant
any provision already received by the applicant from the deceased, even during the deceased’s lifetime
any evidence of the deceased’s intentions
whether the applicant was financially dependent on the deceased
whether any other person is responsible for supporting the applicant
the character and conduct of the applicant and any other person before and after the date of the death of the deceased
How can I make a claim if there isn’t a Will ?
When a person dies without a Will this is known as “intestacy” and the estate is distributed in accordance with the law. Although the laws of intestacy are designed to help relatives it does not take into account individual circumstances and the result may be unfair or unreasonable. Where this is the case in an intestacy, the Succession Act 2006 allows for family provision claims the same as if a person is unfairly left out of a deceased’s Will.
What if there is a Will but it is poorly drafted ?
Wills prepared by people other than lawyers may be poorly drafted and unclear. This may result in the Will not adequately dealing with all of the deceased’s assets and this can result in the deceased’s true intentions not being carried out. Sometimes it is possible to apply to the Court for mistakes to be rectified but only under limited circumstances.
How long do I have to lodge a claim under the Succession Act 2006 ?
The Succession Act 2006 provides in most cases for a 12 month time limit from the date of death to lodge a claim to contest a Will in New South Wales.
What are my options?
Whether your claim involves a Will or an intestate estate, Solari & Stock Lawyers can help you to work out the likelihood of your success and the most cost effective method of achieving the result you are entitled to in your circumstances.