Disappointed by what has been left for you in a Will?

A friend or relative of yours has died and you are surprised that you have not been given anything in that person’s will. Are you able to do anything about it?

You have two choices:

Ask the Supreme Court to order that the will is invalid.
Ask the Supreme Court to change the will to give you part of the estate.

How do I get a will made invalid by the Supreme Court?

By showing that:

The person who made the will did not understand what they were doing. (lacked testamentary capacity)
The person who made the will was pressured by someone else to make the will. (There was undue influence)

In either of those cases the Supreme Court would declare that the will is invalid.

How do I get the Court to order that I should get part of the estate?

To begin with you have to show that you are an “eligible person”. An eligible person is defined by New South Wales law. An “eligible person” is:

A husband or wife of the deceased.
A child of the deceased.
A de facto partner of the deceased.
A grandchild of the deceased who was either a member of the deceased’s household or was financially dependent on the deceased.
A person who was at any particular time living with the deceased and was financially dependent upon the deceased.
A former wife or husband of the deceased.
A person with whom the deceased person was living in a close personal relationship.

If you are able to establish that you are an eligible person, then and only then, are you able to proceed to the next step. You then have to show the Court that adequate provision for you has not been made by the will.

The Court, in deciding whether part of the estate should be paid to you, has to take into account the circumstances, including:

The nature of the relationship between you and the deceased.
The nature and extent of the obligations and responsibilities owed by the deceased to you.
The nature and extent of the deceased’s estate.
Your financial position.
If you are living with another person the financial circumstances of that person.
Your physical, intellectual or mental disabilities.
Your age.
Your contribution, whether financial or otherwise, to the deceased’s property.
Whether any provision had been made for you by the deceased person prior to the deceased person’s death.
Whether the deceased person told you that they were going to leave you something but then did not to do so.
Whether the deceased maintained you, either wholly or partly, during your life.
Your character and conduct before and after the date of the deceased person’s death.
And any other matter the Court considers relevant.

If you would like to discuss with us any aspect of this article please either telephone 9440 1202 or email us lawyers@foxstaniland.com.au