Article Category - Wills & Estates By Peter McManus 03 March 2021

Ever since Cain and Abel there has been conflict between families, but what happens when a family member’s expectations are not met by a deceased relatives Will?

Despite the law recognising that a Will maker has the freedom to leave their assets to any person that they wish. Chapter 3 of the Succession Act 2006 NSW (“The Act”) limits a Will maker’s freedom to leave their assets as they wish.

The Act provides a legislative regime where a person can challenge a deceased person’s Will by commencing what is referred to as a “Family Provision Claim”.

However, before a person can commence a Family Provisions Claim they must establish that they are an “eligible person”. The Act provides six categories of what are eligible persons, which are:

1.     The Husband or Wife of the deceased;

2.     the Defacto spouse of the deceased;

3.     a Child of the deceased;

4.     a former Husband or Wife of the deceased;

5.     a person who was at any time wholly or partly dependent upon the deceased and who is either a grandchild of the deceased or was at the time a member of the same household of the deceased (This is referred to as the Miscellaneous category); and lastly

6.     a person with whom the deceased was living in a “close personal relationship”.

If a person can establish that they are an eligible person then they must commence a Family Provisions claim no later than 12 months after the date of death, unless the person can convince the Court that their Family Provisions Claim should be made "out of time".

Once a person can establish that they are an eligible person then, if they were a former spouse, in the miscellaneous category or in a close personal relationship with the deceased they must establish a genuine need and not a simple wish list.

As always, the answers provided are for your general information only and we ask you to call our office on 1800 650 656 to obtain detailed legal advice for your individual situation.

Peter McManus | Senior Associate

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