When someone close to you dies, it is always a difficult time. However, if it comes as a shock that the Deceased has not remembered you in their Will, it can be very upsetting. While the law recognises that when making a will, a person (the Testator) has the right to deal with their estates as they wish, there is legislation in place to protect those to whom the Deceased has a moral responsibility. In certain circumstances, the law will intervene to ensure that those persons are fairly provided for even if they have been left out of the Will.
If you wish to challenge a Will it is important to get immediate legal advice as there are time limits in which a challenge may be made. Each State and Territory is different. In NSW, it is 12 months from the date of death.
Under the Succession Act 2006 (NSW) particular applicants are entitled to make a claim including a spouse, defacto, child, or former spouse, just to name a few. Other applicants may be eligible depending on their relationship with the deceased.
When an application is made to challenge a will, a Court considers a number of issues, including whether the applicant has been given adequate provision for their proper maintenance, education and advancement in life under the Will of the deceased. The court also takes into account a person’s relationship with the deceased, their character and conduct, as well as their financial circumstances.
Whilst most challenges are dealt with via mediation some will proceed to a court hearing. Not every challenge against a Will is of course successful. However, such claims are very emotional and divisive, and the legal costs are generally paid by the Estate, which in turn reduces the Estate assets and delays any distribution of the Estate until such claims are resolved.
Whilst there is no particular way to prevent a challenge, it is important that as our lives changes, Wills are kept updated. These changes include having children, getting married, divorced or entering into a de facto relationship. When preparing and updating your Will it is important that you clearly understand your Will’s provisions and what impact such decisions will have upon your particular circumstances.