The Will

A will is a legal document that states what a person wants to happen with their estate (the things they own) when they die. It describes who gets what. Wills should be properly drafted so that the estate is dealt with in accordance with the person’s wishes.

If you legitimately deserve something from the deceased’s estate but have been left out of a will, or if you have not been provided for properly, you may be able to contest the will. Contesting the will involves making a Family Provision Claim. If your claim is successful, you may receive part of the person’s estate even though you have not been included in the will.

Family Provision Claims are described in the Succession Act 2006 – the primary law dealing with wills and estates.

What is a Will?

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Only Certain People Are Able To Contest A Will

People who may be eligible to make a Family Provision Claim are:

  • Deceased’s spouse or de facto partner
  • Deceased’s child
  • Deceased’s former spouse
  • Any person who was/is a member of the deceased’s household AND was/is partially or wholly dependent on the deceased
  • Any person living in a close personal relationship with the deceased.
  • Deceased’s grandchild, provided they lived with and were dependent on the deceased

Eg. 1 - A Family member is excluded from a Will

Tom’s father, David, passed away five years ago. When David died, his son Tom left his job and moved in with his mother, Alison. Tom lived with and cared for Alison for two years, relying on his mother’s savings and income from investments as his only source of income.

At the end of those two years Tom and Alison had a serious disagreement and Tom moved out. Tom has since had some odd jobs but has found it difficult to find consistent employment. Tom has kept in contact with Alison to make sure she is being looked after, but their relationship remains tense.

Later, Alison also died. Before she died, Alison removed Tom from of her will because of their ongoing disagreement. Tom would receive nothing under her will.

Tom may make a legitimate Family Provision Claim on the basis that:

  • He is Alison’s son.
  • He left his job to care for her and, as a result, depended on her for his sole source of income.
  • He has found it difficult to re-enter the workforce and obtain a consistent source of income.

Eg. 2 - A close friend contesting a Will

Kristy is a very close friend of Charlotte’s. Four years ago Kristy was involved in a very bad accident. She had surgery and took several months to recover. She still finds it difficult to move around.

After the surgery Charlotte was worried about Kristy living by herself. Charlotte had a spare bedroom which she kindly offered to Kristy. When Kristy first moved in she was dependent upon Charlotte for several months as she was recovering and could not work. As Kristy became more mobile she was able to work more, but remained living with Charlotte.

Charlotte died unexpectedly. Charlotte’s will instructed that her estate be distributed to any surviving family relatives.

It would appear that Kristy had no reason to think she was entitled to anything from Charlotte’s estate. However, the law states that if a person is/was a member of a person’s household and is/was wholly or partially dependent upon them, they may be entitled to an order for Family Provision.

Kristy is a person eligible to make a Family Provision Claim.

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