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What is the purpose of a Will

If your wishes aren’t carried out? In Australia, a person has the right to leave their property to whoever they name in their Will.

However, there are also laws in place that allow a person to challenge the Will of a deceased on the basis, that they were an eligible person to challenge the Will and that the deceased did not make adequate provision for their proper care, education and maintenance in life.

In New South Wales

These types of claims are called “family provision claims” and people eligible to make these claims are partners and ex-partners of the deceased, children and grandchildren of the deceased and other persons who have been part of the deceased’s household and dependent on the deceased.

A recent case in the New South Wales Supreme Court

Jodell v Woods [2017] NSWSC 143 shows how successful family provision claims can be to a person who believes they have been unfairly left out of a Will.

In this case, the deceased left behind her two daughters. Under the terms of her Will the deceased left the whole of her Estate, value at approximately $2 million, to one of her daughters. No inheritance was left to her second daughter on the basis that the deceased and this daughter were estranged.

The Court considered all the evidence before the Court concerning the relationship between the deceased and her estranged daughter as well as the financial situation of the estranged daughter.

What is the point of a Will if your wishes aren't carried out?

After considering all the evidence in the case the Court held that the estranged daughter was an eligible person to make a family provision claim. Consequently, the Court found that the deceased had not made adequate provision for the proper maintenance, or advancement in life of her estranged daughter.

As a result of this finding the Court awarded the estranged daughter $425,000 from her mother’s Estate.

If you have been left out of a Will and you believe you should have been provided for in that Will then there are steps you can take to challenge the terms of the Will. You need to speak to an expert Wills and Estates Lawyer on the options available to you as quickly as possible as time limits apply to family provision claims.