Even though there is a general view that you have a right to choose those persons who will benefit from your estate after your death, it is important to be aware that there are often occasions when a will can be challenged or contested.
The Courts aim to limit any disturbance on the right of testamentary disposition but in circumstances where an application is made to the Court by an “eligible person”, the Court has the power and can make orders that provision be made out of your estate for that persons their maintenance, education and advancement in life.
It is therefore advisable to seek legal advice before drafting a will.
Persons Eligible to Challenge And Contest A Will
Section 57 of the Succession Act 2006 (NSW) makes provision for those persons considered to be “eligible persons” to make a claim on your estate. An eligible person, includes the following persons:
- A person who was the wife or husband of the deceased person at the time of the deceased person’s death;
- A person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death;
- A child of the deceased person;
- A former wife or husband of the deceased person;
- A person:
- Who was, at any particular time, wholly or partly dependent on the deceased person; and
- 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;
- A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
Assessment of Wayward or an Estranged Child Claims by The Court
In assessing a claim of a wayward or an estranged child, the Court will consider the following:
- The applicant child’s needs for proper maintenance, education and advancement in life;
- The details of the relationship between the deceased and the child including the conduct of the child or the parent or both the child and the parent;
- The length of estrangement and the underlying reasons for it;
- The conduct of the child before and after the parent’s death;
- Written explanations made by the deceased;
- Whether the child has fallen on “hard times”;
- The child’s financial circumstances; and
- The size of the estate and competing beneficiaries and their financial circumstances.
Owen Hodge Lawyers can advise on additional steps that can be taken to try to prevent successful changeless to your will by your wayward or estranged child.