Kydon Segal Lawyers

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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 adequately provided for. 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 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;
  • 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 provided for under the Will of a loved one, please contact us to discuss your options.