Contesting A Will
If you believe that you should have inherited under a Will, but you didn’t, there are actions you can take to contest the Will. In New South Wales these actions are commonly referred to as “family provision claims” and they are available to eligible people, who believe that a Will did not provide adequate provision to them for their proper maintenance, education and advancement in life.
Eligible people who can start a family provision claim include, spouse and de facto partners, ex spouses and ex de facto partners, children, grandchildren if they were at any time dependent on the deceased, as well as anyone in a close personal relationship with the deceased.
A successful family provision claim was made in the New South Wales Supreme Court case of Bourke v Keep .
In this case the deceased had three children and left her Estate to two of her children, her son and daughter, in equal shares. She did not leave any inheritance to her other daughter. The reason for not leaving any inheritance to one of her daughters, was included in the Will and based on the deceased’s belief that her daughter had a complete lack of concern, or contact with her and other members of her family over a long period of time.
The value of the deceased Estate was approximately $690,000 and as a child of the deceased, the daughter left out of the Will was an eligible person to make a family provision claim on her mother’s Estate.
The Court considered the relationship between the deceased. From the evidence the deceased’s daughter married in 1971 and this marriage resulted in a break within the family. As a result the deceased’s daughter left the family home and only saw the deceased on five occasions, up until her death in 2009. The deceased’s daughter had four children from her marriage and she and her husband were separated.
The Court then considered whether the deceased’s daughter had been left without adequate provision for their proper maintenance, education and advancement in life. As part of this consideration, the Court looked at the financial situation of the deceased’s daughter, concluding that her financial situation was precarious. The Court also considered the two other children of the deceased, finding that they suffered a variety of serious medical conditions which impacted on them being employed.
After considering all the circumstances, including the 38 year estrangement between the deceased and her daughter, the Court concluded that the deceased had not adequately provided for her daughter and ordered that she receive an inheritance of $200,000 from the deceased’s Estate, with her legal costs to also be paid by the Estate.
If you need advice on Inheritance Law and Contesting a Will, then seek expert legal advice from Graeme Heckenberg and his team. Dealing in only Wills Estates Graeme has been servicing Sydney clients for over 25 years!
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