The Succession Act 2006 (the Act) provides the legal framework for providing provision for members of your family and others after you have died. The Act cannot prevent people or others from challenging a Will, but there are elements that must be satisfied before a Court will intervene.
A Will is made to reflect and express your intent and wishes of where and whom your assets should be distributed to following your death. These can be to either people or organisations, but mostly they are intended to provide a financial benefit to family members or others that are close to you.
Sometimes family or others may feel they have not been fairly provided for in a Will and they may seek to question or challenge that Will. It will depend on whether they are ‘eligible’ to make such a claim.
An “eligible person” means a person or type of person who may make an application for a Family Provision Order under section 57 of the Act.
Those persons include:
- The spouse of the deceased person at the time of their death.
- A person who was living in a de facto relationship at the time of the persons death and includes a same sex partner.
- Children of the deceased person including step-children – if they can show they were dependent on the deceased.
- A former spouse of a deceased person but, for instance in most cases if there has already been a property settlement then any contest, may be limited depending on the circumstances.
- A person who was at a particular time was wholly or partly dependent on the deceased person or was a member of the household of a deceased person.
- A grandchild of a deceased person that were dependent on the deceased.
- A person that the deceased person was living in a close personal relationship at the time of the persons death.
This is a broad range of persons. That is why it is important to have a Will drafted with some precision around who you think should benefit from your Estate when you die.
We generally advise that you should provide reasons for leaving out or reducing the benefit of a person who might be eligible to reduce the risk of a challenge to your estate.
Contesting a Will is through making an application to the Supreme Court and asking the court to make a Family Provision Order.
Any application must be filed within 12 months of the persons death, otherwise the applicant must seek leave under the ‘special circumstance’ provisions. An example of this might be if the person did not know that the deceased had died.
An adult child that is left out of a will can contest the will if they feel they have been unfairly left out, so it is important to consider providing for that child, to reduce the risk of any challenge.
We strongly recommend that you seek legal advice and obtain a Will as soon as you start accumulating assets, if your circumstances change such as when you have a family, purchase property/shares, separate or divorce, or if you experience a major life change, such as if you win the lottery, or receive a substantial financial benefit.
You should review your Will every 12-18 months by simply asking the question, “Has anything changed?”
If it has then it might be worthwhile seeking legal advice.
So, if you need to make a Will, or have been left out, or think you may not have been adequately provided for in a Will please contact our Office at (02) 8824 4736 or 0411 460 034 and we will be able to assist in providing certainty and peace of mind for you, your loved ones, and those you wish to gift a benefit through your Estate.
Disclaimer
The content of the McDonald Law website is provided for information purposes only. The contents of this website do not constitute legal advice and should not be used as such. Formal legal advice should be sought in particular matters. Should you have a specific matter that you need legal advice for, or you have any questions about our disclaimer please contact our office on (02) 8824 4736 or 0411 460 034.