Challenging A Will under the Family Provision Act 1982.

Q&A – Wills And Second Families:-

Question:-

My stepfather left my mother and married much younger women. When he died he left all his “worldly goods” to his new wife and nothing to my mother, my siblings or myself. Do any of us have a claim on his estate? Are we able to challenge my stepfather’s Will?

Answer:-

In New South Wales if you have not been provided for in a Will or not adequately provided for in a Will it is possible to challenge the Will under the Family Provision Act 1982.

However, only certain classes of people are defined as “eligible persons” under this Act. These classes include:

• The wife or husband of the deceased person at the time of their death including de facto partners and life partners;

• A child of the deceased, or a child of a domestic relationship with the deceased;

• A former wife or husband of the deceased;

• A person who was, at any time, wholly or partly dependent upon the deceased limited to a grandchild of the deceased or a member of a household in which the deceased was a member.

Your mother as a former wife of your stepfather would be considered an eligible person under the Act. However, as your mother and stepfather were estranged it will be necessary for your mother to show that there was some level of contact between her and your stepfather that would give rise to what the Court calls a “moral obligation of your stepfather to provide for the maintenance, education and advancement of your mother.

Your mother will need to show the Court that provision should be made for her from your stepfather’s estate. When deciding whether to provide for your mother the Court will consider the size of your stepfather’s estate, any competing claims on the estate as well as her financial and medical situation.

You and your siblings will not be considered an eligible person under the Act unless you can show the Court that you formed part of the household of your stepfather and had a financial dependency on your stepfather. Financial dependency includes things like paying for your education, payment of your living expenses and other monetary assistance. If your stepfather provided financial assistance to you and your siblings then he may have what the Court calls a “moral obligation” to provide for your maintenance, education and advancement in life.

If you and your siblings can show that you are eligible persons and that your stepfather had a moral obligation to provide for you then the Court will review your financial situations and, if you can establish a financial need, alter the Will of your stepfather to provide this financial assistance to you and your siblings.

Making a claim under the Family Provision Act is subject to strict time limits.

Graeme Heckenberg is an expert litigation lawyer and will be able to guide you in the process of challenging a will and represent your case in the Supreme Court close to his Sydney city office. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice in a Will dispute or Estate matter, call today for a an appointment closer to home on 9221 0341

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