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Partner - Accredited Specialist in Wills & Estates Law
Partner - Accredited Specialist in Wills & Estates Law
Senior Associate - Accredited Specialist in Wills & Estates Law
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Family Provision Claims
Although the starting point is that each person has the freedom to decide who they leave their property to when making their will, in fact this freedom is restricted by statutory laws in all Australian States and Territories.
In New South Wales for example, Chapter 3 of the Succession Act 2006 allows “eligible persons” to take court action against an estate to try to vary the terms of a person’s will to obtain more than they would otherwise receive under the will or if they have been left out of it. The court may order additional provision for that person (at the expense of other beneficiaries) where the court is of the view that adequate and proper provision was not made by the ‘testator’ for the particular eligible person making the claim.
The categories of “eligible persons” who can make such a claim are:
- the wife or husband of the deceased
- a de facto partner of the deceased
- the children of the deceased (which can include children who are not the deceased’s own children)
- provided the claimant can show factors warranting the making of the application:
- a former wife or husband of the deceased
- a person who was at any particular time wholly or partly dependent on the deceased and is:
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- a grandchild of the deceased, or
- a member of the household of which the deceased was a member
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- a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death
As this list shows, the potential range of claimants can be quite wide. It is important that people making their wills and executors and beneficiaries involved in estates consider whether there are any likely “eligible persons” and obtain expert advice if a claim is made.
As experts in estates law, Teece Hodgson & Ward regularly act for the executors of many estates in advising on and defending claims made against deceased estates. We also regularly advise claimants on their rights and, where appropriate act for claimants in court proceedings in New South Wales.
For further information contact:
Back to Claims, Family Provision, Capacity, Undue Influence.