The Family Provision Act and Contesting a Will

According to the law in New South Wales, an immediate family member has the right to contest a will if the deceased individual did not properly provide for his or her needs and care. This is outlined in the Succession Act of 2006 and the family provision claims are able to be made on the deceased individual’s estate if one of the eligible individuals moves forward and formally contests the will that was created.

Who Is Eligible to Contest a Person’s Will?

In most cases, any immediate family member will be eligible to contest a will; however, there are a few exceptions to this rule. Some of the people who are considered eligible include the following:

  • The spouse of the deceased individual
  • A former spouse of the deceased
  • Any de facto partner who lived with the deceased when he or she passed
  • The deceased’s child
  • The deceased’s grandchild if he or she was totally or partially dependent on the deceased individual for his or her care
  • Any person who was partially or completely dependent on the deceased individual for care and a member of that person’s household
  • A person who had a close relationship with the deceased person, lived in the house, or offered domestic support or mutual care without receiving money to do so

The Process of Contesting a Will

If the deceased owned assets when he or she passed, then the family provision act in NSW allows the above eligible individuals to contest the will. Claims may also be made if the person lived somewhere else but he or she had assets in NSW. It is a good idea to hire a lawyer who is familiar with handling wills to help contest a will. This is necessary if the eligible person is not happy with the amount or number of assets that were left to him or her.

Keep in mind that even though the claim can be made by any eligible person, it does not guarantee that it is going to be successful. The court is going to consider what, if anything, was awarded to the individual and the amount of support that was provided by the person who passed as well as the contesting person’s ability to care for himself or herself in the present. For example, if a spouse now has a great job, he or she may not be successful with the claim that he or she makes. However, a child of the person who passed who needs financial assistance in school may have an easier time being successful with his or her claim.

Claims with No Will

If the person passes away and has no will, then a claim is able to be made against the estate by one of the eligible parties. In most cases, the court will use a formula in order to distribute the assets that the individual had; however, if the family provision claim is made, then it will take this into consideration.

Contesting a will can be complex. Using the services of an attorney is the best way to ensure that a desirable outcome is achieved. Being educated with the process is also beneficial.

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