If you have been left out of a will or made an inadequate claim what can you do to make a disputed will claim in New South Wales and what does the court consider in deciding whether you can get a better claim from the estate
It often comes as a shock to some relatives that they have either been left out of a Will or that there as only been a very small provision.
I recently acted as Executor for a client who complained when making the Will “I have relatives but they have left me for dead. They never visit me and I am extremely hurt that they don’t bother to see whether I am dead or alive”. That client left all of her estate, which was quite sizable, to a childrens charity. This is increasingly not uncommon.
Perhaps the best practical advice, then, is to ensure that if you have an expectation of being a shareholder in the Estate of a relative you should ensure that you have a good relationship with them. Ultimately, the Court recognises that a person can leave their Estate to whoever they wish and the starting point for the Court is to “give effect to the Will”. In fact, the Executor has an obligation, as far as possible, to give effect to the wishes expressed in the Will. However, both the Courts and the Executor, will compromise those wishes in certain circumstances. In the case of the Executor, an Executor will do what is in the best interest of the Estate, which includes a compromise weighing up the commercial considerations and risks of any litigation.
The Court, however, will consider the following:
Steps to Make a Claim:
There are Practical initial questions and steps:
- Eligibility: Ensure you are an eligible person. This includes spouses, de facto partners, children, dependents, and those in a close personal relationship with the deceased. This is defined in statute.
- Time Limit: File your claim within 12 months from the date of the deceased’s death.
- Application: Submit an application to the Supreme Court of NSW, detailing why you believe you should receive a share or a larger share of the estate. You should obtain the assistance of a lawyer in doing so as this is a Supreme Court matter which requires some expertise and specialist knowledge.
Court Considerations:
The court will evaluate several factors to decide if you should receive a better provision from the estate:
- Relationship with the Deceased: The nature and closeness of your relationship with the deceased. Commonly there is an estrangement, and the Court will consider that together with disentitling conduct. For example, if a son attempted murdering a father, the Court will likely consider this type of conduct against the interest of the son as disentitling under the Will.
- Financial Needs: Your current and future financial needs and resources. There is no automatic right for you to have a house and clients often come indicating that they want a house. The Court takes the view that beneficiaries don’t have an automatic entitlement to be treated equally under a Will. So, for example, if a father has seven children all of whom, except one, are independently wealthy with no special needs and one is under expensive medical treatment and homeless, the Court may well find that that child has been inadequately provided for. In doing so the Court considers what a “reasonable” testator/trix in the circumstances would do.
- Contributions: Any contributions you made to the deceased’s welfare or estate. A son, who has given up his life to care for his mother who needs full time care, where the other children barely visited their parent and are all independently wealthy with their own home, may provide a significant distribution to the son who had dedicated his life to his mother.
- Obligations and Responsibilities: Any obligations or responsibilities the deceased had towards you.
- Estate Size and Nature: The value and nature of the estate. If there is a very large Estate of , say for example $100 million, and there is a distribution to 3 sisters, two of which independently wealthy and one in very poor financial circumstances. If that last sister has been provided a very small provision the Court may well distribute more to that daughter by reference to the size of the Estate. There is no automatic right to an equal distribution, however, and a person can distribute their Estate in whatever what they wish.
- Other Beneficiaries: The needs and claims of other beneficiaries.
It’s advisable to seek legal advice to navigate this process effectively. We have a specialist Estate Team who can assist and we have been conducting disputed wills matters successfully for 35 years. We appear regularly in the Supreme Court conducting Family Provisions / Disputed Wills matters. Call on 1300557819 at any time for a no cost conference.
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