In Australia, there is a general view that a person should have the right to choose who will benefit from their estate and who will not. However, there are circumstances where someone may challenge a will.
If an application is made through the courts by an eligible person or one recognised by the Succession Act 2006 (NSW), the court may seek to make a provision order.
Who is considered an eligible person?
The Succession Act attempts to balance the wishes of the deceased with the interests of those eligible to make a claim on the estate.
The Act outlines a number of eligible people, including:
- a person who was the wife or husband of the deceased person at the time of the deceased person's death
- a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death
- a child of the deceased person
- a former wife or husband of the deceased person
- a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.
Or a person:
- who was, at any particular time, wholly or partly dependent on the deceased person, and
- who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
The above is a general list and there are certain exceptions to and extensions of the above criteria, for example in relation to the definition of "child".
What about an estranged family member?
Many families do not stay together as a result of remarriage, disagreement or other causes. Children, parents and siblings can become estranged. Sometimes a person will want to disinherit family members from their will.
Yet, as children and other dependants have a legal right to challenge a will if they are excluded it is essential the will is structured appropriately. A statement of the reasons for the exclusion may make a challenge less likely to succeed, but the Court still has the power to in effect re-write the will of the deceased. In exercising this power the following matters may be considered by the Court:
- any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship
- the obligations or responsibilities owed by the deceased person to the applicant
- the nature and extent of the deceased person's estate and liabilities
- if the applicant is cohabiting with another person - the financial circumstances of the other person
- any physical, intellectual or mental disability of the applicant the age of the applicant
- any contribution (whether financial or otherwise) by the applicant to the estate or welfare of the deceased any provision made for the applicant by the deceased person, either during the deceased person's lifetime or under the will
- any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death
- whether any other person is liable to support the applicant the character and conduct of the applicant before and after the death of the deceased
- any relevant Aboriginal or Torres Strait Islander customary law
- any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.
Additionally, the court will consider the financial resources (including earning capacity) and financial needs, both present and future, of:
- the applicant
- any other person who applies for a family provision order or
- any beneficiary of the deceased person's estate
Again, the above is not an exhaustive list and exceptions apply.
As disinheritance can give rise to complex legal issues that are expensive to resolve, if you do intend to leave someone out of your will, or to limit what they might have expected to receive, it is essential you talk to an experienced wills and estates lawyer.
Through their guidance, they can make a dispute about your will less likely to succeed if you choose to leave an estranged family member out of your will. If you would like to know more about the additional steps a will-maker can take, talk to the estate dispute experts at Craddock Murray Neumann Lawyers today.