It is possible for a Carer to challenge a Will. In New South Wales the Succession Act sets out the classes of people considered “eligible persons” to challenge a Will.
As well as children and spouses of the deceased, one group of eligible persons to challenge a Will is a person who was living in a close personal relationship with the deceased at the time of their death. A close personal relationship (other than a marriage or a de facto relationship) is defined as a relationship between two adults, whether related or not by family, who are living together, one or each of whom provides the other with domestic support and personal care.
However, a close personal relationship will not exist between two adults, where one of them provides the other with domestic support and personal care for a fee, or reward, or on behalf of another person or an organisation.
In a recent case of the Supreme Court of New South Wales, Bayssari v Bazouni, the deceased’s nephew challenged being left out of the deceased’s Will, on the grounds that he was in a close personal relationship with the deceased.
The deceased Estate was valued at approximately $615,000 and in the deceased’s Will she had left her Estate to be divided equally between her three children.
The deceased’s nephew had resided in the house with the deceased for a period of time before her death and argued that he had provided extensive assistance to the deceased, including purchasing food for the house, home maintenance, paying bills for the deceased and cleaning the house on a regular basis.
The deceased’s children disputed these arguments and provided evidence to the Court that they, not the deceased’s nephew, had provided the majority of support to the deceased. In support of this argument they had evidence from the deceased’s neighbour that, she had observed the deceased’s children assisting the deceased with housework, shopping and cooking as well as taking the deceased to medical appointments.
The Court found that the deceased’s nephew was not an eligible person to challenge the Will of the deceased. The Court stated that although the deceased’s nephew was living with the deceased, they lived substantially independent lives, with the deceased receiving the majority of domestic support and personal care from her children and Home Care. Accordingly, the deceased and her nephew were not living in a close personal relationship.
The challenge to the Will by the deceased’s nephew was dismissed by the Court and the deceased’s three children retained their inheritance. The Court also ordered that the deceased’s nephew pay the legal costs of the deceased’s children.
If you need advice on how to protect an Estate from a Will Challenge you need to seek legal advice from an Expert Wills & Estates Lawyer. You need to speak to the expert lawyers at Sydney Wills Lawyers, on how to successfully protect an Estate from a Will Challenge. We specialise in Wills & Estate Law and pride ourselves on our open and honest communication with clients. Offices conveniently situated close to public transport in Sydney, CBD.
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