A person can transfer his estate to whosoever he wishes to, through his Will, but the freedom of disposition of an estate is partly true.
From 1 March 2009, the New South Wales Succession Amendment (Family Provision) Act 2008 commenced its operation and the purpose of this new Act includes repealing the Family Provision Act 1982 and amending the Succession Act 2006(the Act) to ensure that adequate provision is provided to the family members of a deceased person and certain other persons from the deceased person’s estate.
People can make Family Provision claims against a Will in situations where the Will is valid but the provisions stated in the Will are unfair. In such situations, the Court can make few changes in the Will or can distribute the estate in favour of those people.
A Will can be challenged based upon a number of factors if:
- The Will is grossly unfair;
- The family members have proper financial needs;
- There are dependents who were partially or fully dependent on the deceased; or
- The testator was not in proper mental capacity while making the Will.
Estate disputes may arise between your family members and other persons for a number of reasons if:
- They were dependent on you;
- The share of your estate is not adequate for their maintenance and support;
- The relationship between you and any such family member or other person began after the last Will was made;
- Your Will does not provide enough for any particular family member such as your ex-partner or children from an earlier marriage or de facto relationship;
- They believe that your Will is grossly unfair;
- They can prove that you were not in sound state of mind when the Will was prepared;
- They can prove that you were unduly influenced by one or more of the other beneficiaries of your Will; or
- If your Will is not clear or not valid or it does not exist.
Under Section 3 of the Act, eligible persons are deemed to be those who are qualified to dispute an estate or make Family Provision claims or make an application for Family Provision Orders to the Court in respect of the estate or notional estate of a deceased person to provide maintenance, education or advancement in their life.
Under Section 57 of the Act, the persons who are eligible to make claims are as follows:
- Surviving husband or wife of the deceased person;
- A person who was living in a de facto relationship with the deceased person;
- A child of a deceased person, including an adopted child;
- A former divorced husband or wife of the deceased;
- A person who was:
- Wholly or partly dependent on the deceased person; or
- A member of the household of the deceased person.
- A person who was having a personal relationship with the deceased person.
Your family members and loved ones can dispute your estate and can make Family Provision claims under the Act within 12 months from the date of your demise, unless the period have been extended by the Court on specific grounds.
The chances of your family members and other persons succeeding in Family Provision claims and the amount which the Court may order depend upon a number of factors including their relationship with you, the size of your estate and the number of dependents and relatives you have.
Contact our team of experts at Owen Hodge Lawyers to provide you assistance in these matters.