WHERE THERE’S A WILL THERE’S A WAY… What challenges can be made to a will?

2.         Family Provision Claims

The most common form of challenge is a “Family Provision” claim, now under part 3.2 of the Succession Act of NSW, which replaced the Family Provision Act. 

The person must be eligible to make a claim.  That means there must be a spouse, a de facto spouse, former spouse or de facto spouse, child of the deceased, in a close personal relationship with the deceased at their death, or a member of the household of the deceased (or grandchild) who was wholly or partly dependent on the deceased.  

If the person is eligible to make a claim, the next issue is whether, in all the circumstances, after the death of the will maker, proper provision has been made for the adequate “maintenance, education and advancement in life” of the claim. 

The decision is discretionary.  The Court looks at the assets of the estate, who else could have expected provision, the financial situation of the beneficiaries and the person seeking provision, the relationship between the deceased and that person and many other things.

It’s not much use making a will if you are inviting a challenge by an eligible person.  That will just send the bulk of your estate into legal fees. 

There are ways to make sure the will is actually effective to do what you want.  Which one is appropriate can be a complex issue dependent on your circumstances. 

Anyone drafting a will must go through your assets, debts, and financial resources, including super, who is in your family and who are eligible persons, and what is the best way to do what you want to do to make sure that the will actually works. 

Get it does properly by a competent legal professional with experience in the area.