Last will document with fountain pen.

Defending A Will

Defending a Will in NSW 

I was in a same-sex de facto relationship. Unfortunately, my partner died and left the bulk of his Estate to me. His family did not recognise us as a couple and are now making a claim on his Will. How do I go about defending myself?

Your partner’s family are making a claim on his Estate and this is commonly called a “family provision claim”.

Under the Succession Act, only eligible persons are able to make a family provision claim. Eligible persons include de facto partners, children of the deceased and a person who was, at any particular time, wholly or partly dependent on the deceased and was a member of the deceased household at any time.

Based on the above, your partner’s family may be able to bring a family provision claim against your partner’s Estate if they can show the Court that, they were a member of your partner’s household at any time and most importantly, were wholly or partly dependent on your partner at any time. If they are unable to show the Court that they are an eligible person as defined in the Succession Act, then they would be unable to make a family provision claim against your partner’s Estate.

You need to seek expert legal advice on how to defend your inheritance from your partner, from a family provision claim. This includes advice on preparing your evidence, to ensure the Court accepts you were in a de facto relationship, as well as advice on whether the matter can be settled through mediation with your partner’s family.

The Succession Act is aimed at the speedy resolution of family provision claims, without the need for the matter to go to a court hearing. To ensure this, the Court will order the parties to attend mediation early in the proceedings and a large majority of family provision claims are settled by mediation, saving both parties from having to participate in what could be an emotional court hearing, as well as saving the Estate from having to pay legal costs.

It is important that you have expert legal advice before attending a family provision claim mediation as this is the best way to defend your inheritance by presenting a strong case to your partner’s family at mediation. This includes ensuring that his family are presented with strong evidence showing that you and your partner were in a bona fide and genuine de facto relationship.

If you need advice on defending a Will from a family provision claim, then you need to seek legal advice from an expert Wills & Estates Lawyer.   Sydney Wills Lawyers are experts in Estate Litigation and the principal Graeme Heckenberg has been practicing in this area of law for over 25 years. 

Call today for an obligation free consultation on 9221 2779 or email info@hecken.com.au