WILL CLAIMS... SHOULD THEY BE ALLOWED?

This is a VERY CONTROVERSIAL area of the law.

I am referring to claims by relatives or past acquaintances to a share of the deceased’s estate as opposed to claims, say, about the validity of the Will (e.g., whether the person was of sound mind, or was unduly influenced, etc.).

Under the Succession Act 2006 NSW, an “eligible person” may make a claim for provision from the estate of the deceased within a prescribed period for his or her proper maintenance, education, or advancement in life.

A Will maker is legally termed a "Testator".

Testamentary freedom is the term given to the Testator's legal freedom to make a Will and to distribute his or her own assets as he or she sees fit. However, the law acknowledges that this freedom cannot be completely unfettered, as it may otherwise lead to injustice such that a person to whom the Testator ought to have had regard (e.g., surviving spouse, child, etc.) may be left without adequate provision, if any, and without remedy. The family provision legislation exists as a means of rectifying this problem.

RECOMMENDATION:

1.      Get proper legal advice about your Will. Take it seriously! A Wills & Estates expert will obtain details to assist you in crafting a Will that will likely minimise, if not avoid, potential claims against your estate.

2.      Consider whether your Will is up to date. As time passes, your circumstances may change, and your Will may need to change with them.

3.      If you feel that you have been unfairly left out of a Will, then call my office for a free initial consultation. Remember, time limits apply.

Phil Brogan – Expert Lawyer in Family Law and Estates