A situation may arise in which a person may feel that they have been inadequately provided for in a persons Will. This situation may arise when a loved one fails to update their Will to reflect their current situation, for example they may be in a new relationships and/or have additional children who have been left out.
The law in NSW is clear and definitive on who is eligible to contest a will. The categories of people are a closed set of categories which include the following:
- At the time of death the husband or wife of the deceased,
- At the time of death the de-facto partner of the deceased,
- A child of the deceased,
- Former spouse of the deceased,
- Grandchild of the deceased who was at any particular time wholly or partly dependent upon the deceased, and at that particular time or at any other time was living in the same household as the deceased.
- A person who the deceased was living in a close personal relationship at the time of their death.
In determining whether to make an order in favour of an eligible person, the court will consider such factors as set out below;
- Any evidence of the deceased’s intentions.
- Any family or other relationship between the claimant and the deceased,
- The financial position of the claimant and other beneficiaries of the estate including current and future financial needs.
- If the claimant has any disabilities, the claimant’s age and character.
- Any previous provision made to the claimant.
- Any maintenance the deceased was providing to the claimant.
- Any applicable customary law if the deceased was Aboriginal or Torres Strait Islander
- Any other claims on the estate.
- Any other matters the court considers relevant.
It is important to note that here are strict time limitations and rules on when a claim needs to be made. Further it is highly recommended that you seek legal advice as contesting will is not an easy process, and incorrectly making a claim can be a very costly exercise.
If you believe that you may be eligible to make a claim against an estate that you believe you have been inadequately provided for you should seek legal advice, and contact our office on 4627 3333.
This article was published on 20/09/22 and the information is valid only to the date of publishing. This article should be considered merely general and non-specific on the subject matter and is not and should not be considered or relied on as legal, advice. Meehans Solicitors is not responsible in the event this information is relied upon by the reader in the absence of specific legal advice.
