Succession Act and Challenging A Will In NSW
In most States of Australia legislation is in place to assist people in challenging a Will. In New South Wales this legislation is called the Succession Act.
The Succession Act sets out who and how a person can Challenge a Will. Under the Act only people who fall within the definition of an “eligible person” are able to Challenge a Will. Eligible persons include:
– Spouses and ex spouses;
– De facto partners of the deceased;
– Children of the deceased;
– A person who was, at any particular time, wholly or partly, dependent on the deceased and who was a grandchild of the deceased or a member of the household of the deceased; and
– A person who was living with the deceased in a close personal relationship at the time of the deceased’s death. A close personal relationship is defined as a relationship between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. A close personal relationship will not exist between two persons where one of them is providing the other with domestic support and personal care for a fee or reward.
Being an eligible person to Challenge a Will under the Succession Act is just the first step. The second step is proving to the Court that the deceased has not made adequate provision for your proper maintenance, education and advancement in life.
When considering whether adequate provision has been made the Court will consider the following factors:
– Any family or other relationships you and the deceased, including the nature and duration of the relationship;
– The nature and extent of any obligations owed by the deceased person to you, to any other person Challenging the Will or to any beneficiary of the deceased estate;
– The nature and extent of the deceased’s Estate and any liabilities of the Estate;
– Your financial resources and financial needs as well as the financial resources and needs of any other person Challenging the Will or any other beneficiary of the deceased estate;
– The financial circumstances of any person you are cohabiting with;
– Whether you are suffering any physical, intellectual or mental disability or whether any other person Challenging the Will is or a beneficiary under the Will;
– Your age;
– Any contribution by you (financial or otherwise) to improving the value of the deceased’s Estate;
– Any provision made for you by the deceased while they were alive and in their Will;
– Evidence of the testamentary intentions of the deceased;
– Whether you were being maintained by the deceased before the deceased’s death;
– Whether any other person is liable to support you; and
– Your character and conduct before and after the death of the deceased.
If you are considering Challenging a Will then you need to act quickly as the Succession Act also contains a time limitation of 12 months from the date of death of the deceased. Any application to Challenge a Will outside of this time needs to prove to the court that there were good reasons why the application wasn’t made within the 12 month period.
Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide and advise you on the Succession Act and Challenging a Will. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice call The Northern Beaches Lawyer today for an appointment close to home. Call 9221 0341
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