Challenging a Will – Claims for Further Family Provision.

Will challenge

Border Wills and Probate can provide you with advice with regard to challenging the provisions of a Will or defending a challenge to a Will, both in NSW or VIC.

Testamentary freedom, being the ability to determine who shall receive provision from your deceased estate, is not without limitation. When making a Will, a testator has a duty to consider and make adequate provision for family members who require particular financial maintenance and support. It is just as true, that a testator does not have an obligation to distribute their estate equally between their family as some members may have more need than others.

In the event a family member of a deceased has not received adequate provision, then that person may seek to claim further family provision (referred to as a Family Provision Claim) with the relevant Court.

When considering Family Provision Claims, amongst other things, the Court will take into account the following factors:

  • Whether the claimant is eligible to claim further provision;
  • The relationship between the claimant and the testator;
  • The level of financial dependence between the claimant and the testator;
  • The support (financially and emotionally) provided by the claimant in favour of the testator;
  • The financial support provided by the testator in favour of the claimant;
  • The size of the estate (in New South Wales this includes ‘notional’ estate assets);
  •  The financial needs of the claimant;
  • The needs of competing claimants i.e other beneficiaries.

A Family Provision claim may also occur when a deceased dies without leaving a valid Will and the laws of intestacy do not result in a particular family member receiving adequate financial support. The considerations which the Court takes into account when considering such claims are the same as those which are relevant to a situation where a person leaves a Will.

Claiming further Family Provision and/or challenging a deceased’s Will, should only be undertaken after careful consideration. Whilst it is common for family provision claims to be resolved at mediation, such claims are often costly, take a long time to resolve and damage family relationships.

In Victoria, claims for further Family Provision are required to be commenced within 6 months of the date the Supreme Court issues the Grant of Representation (either the Grant of Probate or Letters of Administration).

In New South Wales, claims for further Family Provision are required to be commenced within 12 months of the deceased’s date of death.

A person may also seek to challenge a Will on the basis that the testator did not have the capacity to understand the effect of the document when the document was executed (for example it may be alleged that the testator was suffering from dementia when the will was signed) or the Will is invalid as it was not properly executor and/or the Will is fraudulent.

The ability to challenge a Will and/or claim further Family Provision brings to the fore the considerations which must be taken into account when making a Will. The costs which may be incurred by an estate defending a claim for further provision or the validity of the Will itself may pale into comparison against the costs of making at least some provision in favour of particular family members or going to the extra effort of obtaining medical advice to support an assessment as to a person’s capacity to make a Will. Such considerations will are discussed with our clients when making a Will .

Contact us to find out more or to make an appointment.

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