If you believe that you might have grounds to contest a Will there are a few important facts you need to know!
There are numerous grounds available to contest a Will including undue influence, fraud or a lack of testamentary capacity in the Will maker. However, the most common ground used to contest a Will is called a ‘family provision claim’. This is a claim made under the New South Wales Succession Act 2006 (“the Act”) that the deceased did not adequately provide for your maintenance, education or advancement in life in their Will.
If you believe you have grounds to contest a Will by making a family provision claim there are a few important facts that you need to know!
You must be an ‘eligible person’ to make a family provision claim
A family provision claim can only be made by an ‘eligible person’ and this includes:
(a) The husband or wife of the deceased;
(b) The de facto partner of the deceased;
(c) A child of the deceased;
(d) A former husband or wife of the deceased;
(e) A person who was, at any time, wholly or partly dependent on the deceased and is either a:
(i) A grandchild of the deceased; or
(ii) Was, at any time, a member of the household of the deceased.
(f) A person who was living in a close personal relationship with the deceased at the time of the deceased’s death.
The list of who is an ‘eligible person’ is very wide so if you are unsure whether you qualify as an eligible person contact The Northern Beaches Lawyer for expert advice on whether you are able to contest the Will.
There is a strict time limit on making a family provision claim
It is vitally important to be aware that there is a time limit on making a family provision claim. In New South Wales a family provision claim must be made within twelve months of the date of death of the deceased.
If you wish to make a family provision claim outside of the twelve-month time limit you need to provide compelling evidence and reasons to the Court on why you failed to make the claim within the time limit and why the time limit should be extended. To avoid this make sure you seek legal advice as soon as possible if you believe that you have grounds to contest a Will.
You need to show that there was a failure to make adequate provision for you in the Will
To be successful in a family provision claim you need to show the Court that the deceased failed to make adequate provision for your proper maintenance, education or advancement in life. The Court will consider a large list of factors when determining this question such as your current financial position and future needs as well as the current financial position and future needs of other beneficiaries under the Will.
At the Northern Beaches Lawyers we are experts in gathering the evidence that needs to be provided to the Court for a successful family provision claim.
Graeme Heckenberg is an expert litigation lawyer and will be able to guide you in the process 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 Northern Beaches Lawyers today for an appointment close to home.
Phone 9221 0341 – City Experience by the Beach.