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FAMILY PROVISION AND WILL DISPUTES
The Will of a deceased person can be contested where family members and certain other persons believe that they have not been provided for adequately. Whilst the law recognises a person’s right to make a Will that is unfettered, the law does allow a Will to be contested on certain grounds.
The new provisions of the New South Wales Succession Act 2006 commenced operation on 1 July 2009 to ensure that adequate provision is made for members of the family of a deceased person, and certain other persons, from the estate of a deceased person.
Orders for family provision must be made within 12 months after the date of death of the deceased person.
Persons who are eligible to apply include:
- a person who was the wife or husband of the deceased person at the time of the deceased person’s death;
- a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death;
- a child of the deceased person or, if the deceased person was, at the time of his or her death, a party to a domestic relationship, a person who is, for the purposes of the Property (Relationships) Act 1984 , a child of that relationship;
- a former wife or husband of the deceased person;
- a person who was wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person or was a member of the household of which the deceased person was a member;
- a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
In seeking a family provision order, the matters that may be considered by the court include, but are not limited by, the following:
- Whether the Will of the deceased was unfair;
- The financial resources and financial needs of the applicant;
- The nature and extent of any obligation owed by the deceased to the applicant;
- Whether the applicant was financially dependent on the deceased;
Contributions by the applicant to the deceased persons estate or the welfare of the deceased person or their family;
- Whether the applicant was being maintained before the deceased person’s death;
- The character and the conduct of the applicant before the deceased person’s death;
- Whether the deceased was mentally capable to understand what they were doing when drafting the Will
If you feel that you have been unfairly dealt with under the Will of a loved one, please contact us to discuss your options.
This page is not intended to constitute or be a substitute for legal advice. If you wish to obtain specific advice and consult with one of our family law solicitors in regard to your situation please contact us on (02) 9344 2000 or send an email to family@kydonsegal.com.au.
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