Family Provision Claims & Estate Disputes

Have you been left out of a Will?  Are you the Executor of a Will where a person has made or is proposing to make a claim against the estate?

Under Chapter 3 of the (NSW) Succession Act, any person who is an “eligible person” can make a claim provision out of an estate for their “maintenance, education or advancement in life”.  It has been held a student who boarded with an elderly woman and who benefited from her generosity and kindness was not only an eligible person but was successful in his claim.  Had the elderly woman not been so kindly, he would not have been an “eligible person”.

Each case will depend upon its own facts.  There are many factors including the nature of the relationship, the degree of dependency, the financial position, health and needs of the eligible person and  the size of the estate.

What of situations where deceased and an eligible person have been estranged?  What of abandonment, possible financial or emotional abuse, (commonly referred to as “disentitling conduct”)?  Professional legal advice is essential.

Note that the usual order in these cases is for the legal costs of all parties to be paid from the estate.  Hence the importance of accurately assessing a claim and seeking to resolve a claim as quickly as possible at minimum cost, or taking steps to protect one’s position by making a formal Offer of Compromise or an informal Calderbank offer.

Testamentary Capacity:

Was the deceased competent?  Did the deceased know what they were doing at the time they made their will?  What is the test of capacity?  When does a person who is competent cease to be competent?  If there are capacity issues how are they best identified and addressed?

Can you challenge a Will?

These are matters requiring careful consideration and experienced professional guidance.  Contact us to make an appointment to get that advice.