My father has just passed. He was estranged from my mother, although he never re-married or had another partner. He has left my mother out of his Will and she now has dementia and therefore is not able to contest his Will. Am I able to do this on her behalf? I currently have Power of Attorney.
Yes, you are able to contest your father’s Will on your mother’s behalf.
Contesting a Will, is governed by the Succession Act of New South Wales. Under the Succession Act only people defined as ‘eligible persons’ are able to contest a Will. Contesting a Will under the Succession Act is commonly referred to as making a family provision claim.
Is your mother an eligible person under the Succession Act?
Your mother is an eligible person under the Succession Act as the definition of eligible persons includes:
- A person who was the wife or husband of the deceased at the time of their death; or
- A former wife or husband of the deceased.
Regardless of whether your parents were separated or divorced your mother is an eligible person to make a family provision claim.
Can you make a claim on behalf of your mother?
The Succession Act allows for a family provision application to be made by a tutor for an eligible person if the eligible person is under a legal incapacity. A person under a legal incapacity includes a person who is incapable of managing their affairs. Your mother would be a person under a legal incapacity as she is suffering from dementia and incapable of managing her affairs, including a family provision claim on your father’s estate.
How do you become a tutor?
You need to follow the correct procedure in order to become your mother’s tutor and to be able to make a claim on your father’s Estate on her behalf.
There are a number of requirements that you need to satisfy to be able to make a family provision claim on your mother’s behalf including:
1. You need to instruct a solicitor to act on your behalf as a tutor of a person under a legal incapacity is prohibited from commencing or carrying on court proceedings unless they have a solicitor acting on their behalf.
2. Your solicitor needs to file the following documents with the Court:
(a) Your written consent to act as your mother’s tutor; and
(b) A certificate signed by your solicitor stating that you do not have any interest in the proceedings that would conflict with your mother’s interests.
How do I find the right solicitor?
It is a requirement to act as your mother’s tutor in contesting your father’s Will that you instruct a solicitor to act on your behalf. You need to ensure that you have expert and experienced legal advice to ensure that your duties as your mother’s tutor are satisfied. You need the Northern Beaches Lawyers.
Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide you advise you in the event that you need to act as tutor to a loved one in Contesting A Will. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice in a family law matter, call Northern Beaches Lawyers today for an appointment close to home.
If you want to find out whether you have a case to Contest A Will, come and see Graeme for an appointment – first 20 minutes are free – you have nothing to lose!
Call today for a an appointment closer to home on 9221 0341
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