The loss of a loved one is an extremely stressful event. Nerves are raw and emotions run high, making disagreements between family members all too common, especially when it comes to who gets what when the will is being challenged.
So what is an executor to do when a family member wants more?
In an effort to protect family members and those with a close, personal relationship with the deceased, the Succession Act allows for Wills to be “altered” under specific, defined circumstances. Those who are “eligible”, under the act, may make a claim against the estate if they have not been adequately provided for.
How is eligibility determined? Generally speaking, spouses, de facto partners and children of the deceased can make a claim against an estate. So can those who have had a close, personal relationship with the deceased testator, including siblings, parents, ex spouses, aunts, uncles and cousins provided there are circumstances warranting.
Yet eligibility alone does not guarantee an order for provision out of the estate. Many of these disputes revolve around the question of whether “adequate” provision was or was not made by the deceased and in some cases claimants must also prove that there were additional factors that warrant an application. If the court considers that the deceased had a “moral responsibility”, yet did not provide adequately for the proper maintenance, education and advancement of an “eligible person” as a loved one, then the Will may be “altered” by order of the court which acts as a codicil to the will. If the court decides that the responsibility of the testator has been met, then no changes will be made since there is a degree of freedom of testation.
This determination is not a simple procedure and involves value judgements. Many variables are weighed, including the size of the estate, the financial situation of the applicant and the wishes of the testator. Things like the age, physical and mental health, and the conduct of the claimant are also considered.
Because of the number the factors involved, this process can be extremely complicated — one that is highly dependent on the discretion of the Judge. So if you feel that a family member wants more than their fair share, it is important to understand your rights under the law. At Litigant, we have have experience in dealing with contesting a will and one of our Sydney litigation lawyers can help you vindicate your rights. To find out more, simply call +61 2 8644 0663. Book a consultation and we’d be happy to answer any questions you may have.
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