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If you have recently undergone a separation, estrangement from your children or know of anyone who is experiencing family conflict, take a moment to consider this: does the law allow you to make any kind of Will you wish? Can you leave a family member out of your will? Can the Court override your intentions?

In New South Wales, the answer is yes on all fronts.

For over 100 years, parliament has tried to ensure that the laws of New South Wales kept up with social attitudes towards the age old issue of whether or not individuals should have complete freedom to make any kind of Will they wish.

Unlike many European jurisdictions, where the question of inheritance is largely predetermined, in New South Wales the parliament has attempted to strike a more even balance between an individual’s freedom to gift their assets in any manner they choose and their moral obligations to their dependents, by limiting the extent and scope of their moral obligations with reference to certain factors such as the financial needs of the person challenging the Will.

Time frame for making a claim

An ‘eligible person’ may make an application for a Family Provision order at any time within twelve months after the date of death of the deceased person. This is a strict time limit and it is important to obtain legal advice early.

Who can make a claim?

There is a specific list of persons, described as ‘eligible persons’, who may apply to the Court to challenge the Will. These persons are:

1. the wife or husband of the deceased person,
2. a de facto partner of the deceased person,
3. a child of the deceased person,
4. a former wife or husband of the deceased person,
5. a person:
   1. who was, at any particular time, wholly or partly dependent on the deceased person, and
   2. who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
6. a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

When will the Court make a Family Provision Order?

A Court may make a Family Provision Order if the Court determines that the individual seeking the order is firstly, an ‘eligible person’ and secondly, has not received provision for the proper maintenance, education or advancement in life by the Will of the deceased.

What factors will the Court Consider?

Whether or not the scales will tip in favour of the estate or the person challenging the Will will depend on how the Court chooses to weigh up the following factors:

1. the relationship between the applicant and the deceased person;
2. the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant;
3. the nature and size of the deceased person’s estate;
4. the financial resources (including earning capacity) and financial needs (both present and future) of the applicant;
5. any physical, intellectual or mental disability of the applicant;
6. the age of the applicant;
7. any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the property of the deceased person or to the welfare of the deceased person;
8. any provision made for the applicant by the deceased person;
9. any evidence of the testamentary intentions of the deceased person;
10. whether any other person is liable to support the applicant;
11. the character and conduct of the applicant before and after the date of the death of the deceased person; and
12. any other matter the Court considers relevant.

Defending the Will

Persons named as executors of a Will are responsible for defending any challenges made to the Will. It is essential that executors obtain expert legal advice in the event that they are challenged by a potential applicant who proposes to make a claim upon the estate of a deceased person.

At Longton Legal we have expert lawyers who will guide and support you through the legal framework, and ensure that you fulfil your obligations to the estate. Defending a challenge to the Will of a deceased relative is stressful and emotional. We can provide you with comprehensive and practical advice to achieve a smooth resolution of the matter.

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If you have recently undergone a separation, estrangement from your children or know of anyone who is experiencing family conflict, take a moment to consider this: does the law allow you to make any kind of Will you wish? Can you leave a family member out of your will? Can the Court override your intentions?

In New South Wales, the answer is yes on all fronts.

For over 100 years, parliament has tried to ensure that the laws of New South Wales kept up with social attitudes towards the age old issue of whether or not individuals should have complete freedom to make any kind of Will they wish.

Unlike many European jurisdictions, where the question of inheritance is largely predetermined, in New South Wales the parliament has attempted to strike a more even balance between an individual’s freedom to gift their assets in any manner they choose and their moral obligations to their dependents, by limiting the extent and scope of their moral obligations with reference to certain factors such as the financial needs of the person challenging the Will.

Time frame for making a claim

An ‘eligible person’ may make an application for a Family Provision order at any time within twelve months after the date of death of the deceased person. This is a strict time limit and it is important to obtain legal advice early.

Who can make a claim?

There is a specific list of persons, described as ‘eligible persons’, who may apply to the Court to challenge the Will. These persons are:

1. the wife or husband of the deceased person,
2. a de facto partner of the deceased person,
3. a child of the deceased person,
4. a former wife or husband of the deceased person,
5. a person:
   1. who was, at any particular time, wholly or partly dependent on the deceased person, and
   2. who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
6. a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

When will the Court make a Family Provision Order?

A Court may make a Family Provision Order if the Court determines that the individual seeking the order is firstly, an ‘eligible person’ and secondly, has not received provision for the proper maintenance, education or advancement in life by the Will of the deceased.

What factors will the Court Consider?

Whether or not the scales will tip in favour of the estate or the person challenging the Will will depend on how the Court chooses to weigh up the following factors:

1. the relationship between the applicant and the deceased person;
2. the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant;
3. the nature and size of the deceased person’s estate;
4. the financial resources (including earning capacity) and financial needs (both present and future) of the applicant;
5. any physical, intellectual or mental disability of the applicant;
6. the age of the applicant;
7. any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the property of the deceased person or to the welfare of the deceased person;
8. any provision made for the applicant by the deceased person;
9. any evidence of the testamentary intentions of the deceased person;
10. whether any other person is liable to support the applicant;
11. the character and conduct of the applicant before and after the date of the death of the deceased person; and
12. any other matter the Court considers relevant.

Defending the Will

Persons named as executors of a Will are responsible for defending any challenges made to the Will. It is essential that executors obtain expert legal advice in the event that they are challenged by a potential applicant who proposes to make a claim upon the estate of a deceased person.

At Longton Legal we have expert lawyers who will guide and support you through the legal framework, and ensure that you fulfil your obligations to the estate. Defending a challenge to the Will of a deceased relative is stressful and emotional. We can provide you with comprehensive and practical advice to achieve a smooth resolution of the matter.

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