Segelov Taylor

Help with unfair Wills

Help with unfair Wills

A Will is unfair if it leaves out or fails to adequately provide for an eligible person. Under the Succession Act 2006 (NSW), eligible persons are:

  • A spouse or former spouse;
  • A de-facto spouse (including same sex partner);
  • A child (including adopted child);
  • A person who was, at any particular time, dependant (wholly or partially) who is a grandchild or was a member of the deceased’s household;
  • A person the deceased was living in close personal relationship with at the time of death.

If you are an eligible person and wish to commence a claim, you have to file a family provision application (FPA) and show that you have not received adequate provision for your proper maintenance, education or advancement of life in the deceased’s Will.

A claim is made by filing the application in court along with a detailed affidavit setting out the circumstances of the case. The estate will respond and file its own evidence. The matter will then be listed for compulsory mediation.

If the claim does not resolve at mediation, it will be listed for hearing. If a matter proceeds to hearing, then it normally takes between 12 to 18 months to finalise.

Each case will be determined on its facts. A court will, in determining the matter, consider the following:

  • The adequacy for the provisions for your maintenance, education and advancement of life.
  • The circumstances of other eligible persons or beneficiaries under the Will.
  • The nature and duration of your relationship with the deceased.
  • Your circumstances including your financial resources, earning capacity and your health.
  • The size of the estate.
  • Your relationship with the deceased including the nature and duration of your relationship.
  • Any contributions you made both financial and non-financial to the deceased in their lifetime.
  • Any provisions the deceased made for you during their lifetime.
  • Any other relevant matters.

If you are successful, the Court will redraw the Will so that adequate provision is made for your proper maintenance, education and advancement of life.

Importantly, strict time limits apply. In NSW, a claim must be commenced within 12 months from the date of death. There is limited scope for obtaining an extension of time. In other states different time limits apply.

More Information
Unless a Court otherwise permits, Claims contesting wills must be commenced within specified time periods. Tanya Segelov discusses the time periods involved in contesting a will.
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