Will Disputes

HAVE YOU BEEN LEFT OUT OF A WILL?

Many people feel disappointed when they find out they have been left out of a Will. There may have been promises made during the deceased’s lifetime, a moral duty to provide or issues with the Will itself. This may lead to considering if you should dispute the Will. The structure of families has changed over time with many people living in blended families or inter-generational arrangements. This includes, adult children living at home longer or “granny-flat arrangements”. There have been increases in challenges to wills as a result of

1. changes to the law
2. increased property prices
3. complex family situations
4. blended families
5. step-families
6. second marriages

Wills can be challenged either on their validity or their fairness.

Why do people dispute a Will?

1. They have been unfairly left out of the Will
2. They have not received a fair share (referred to as “not adequately provided for”)
3. The Will is invalid

In New South Wales, these types of claims are called “Family Provision Claims”.

Who can make a claim?

1. Husband/Wife – You were the spouse of the deceased at the time of death.
2. Ex-Husband/Wife – you were the deceased’s former spouse.
3. De-facto – You were a person who was living in a de-facto relationship with the deceased at the time of death. This includes same sex partners. We can provide advice as to whether you qualify as a de-facto partner.
4. Ex-Defacto – You were the deceased’s former de-facto spouse.
5. Child of the Deceased – You were the deceased’s child. This includes adopted children but not step children.
6. OTHER PERSONS, including:
   Parents; siblings, step children, grandchildren, close personal friends, etc

To be eligible under this category you need to fulfill other criteria

-being a member of the household of the deceased

-being wholly or partly dependant on the deceased (including cases of co-dependency)

-being in a close personal relationship with the deceased

Interested persons

1. You were named in a previous Will as an Executor.
2. You were named in a previous Will as a beneficiary.
3. You were named in a final Will as a beneficiary.

What makes a Will invalid?

1. The Will was not properly executed;
2. The Deceased did not have “knowledge and approval”
3. There was fraud
4. There was undue influence
5. The Deceased lacked capacity
6. There are suspicious circumstances

Time limits

Claims must be made within 12 months of the date of death of the Deceased.

Call us on 02 9151 7339  or 0406 239 946 or email rachel@carteroneill.com.au to see if you want us to give you a free assessment of your claim on an Estate.