I have been left out of a will in NSW. Can I still get something from the estate?
In certain circumstances you can make an application under the Family Provision chapter of the Succession Act (NSW) 2006 to claim from the estate. You can do this even if you are not named in the will. More detail…
Do I have to go to Court to resolve a will dispute?
You don’t necessarily have to go to Court. You can try and negotiate a settlement before Court proceedings are commenced, though you have to be careful that you have enough information to assess whether any offer you get is fair or not.
After proceedings are commenced, claims under the Succession Act (NSW) for a benefit from the estate often settle at a Court appointed mediation. This can be a better forum to resolve a dispute as the parties are required to follow Court rules and are generally aware of what evidence each other has through the Court process.
Can a defacto spouse claim from the estate?
Yes. A person eligible to make a claim under the Succession Act (NSW) includes a person with whom the deceased person was living in a de facto relationship at the time of death.
Can a grandchild make a claim?
Yes. A grandchild who was at any particular time wholly or partly dependent on the deceased person is eligible to make a claim under the Succession Act (NSW).
Who can see a will?
Under section 54 of the Succession Act (NSW), a person who has possession or control of a will of a deceased person must allow certain people to inspect or be given copies of the will (at their own expense). People allowed to inspect or copy include:
(a) any person named or referred to in the will, whether as a beneficiary or not,
(b) any person named or referred to in an earlier will as a beneficiary of the deceased person,
(c) the surviving spouse, de facto partner (whether of the same or the opposite sex) or issue of the deceased person,
(d) a parent or guardian of the deceased person,
(e) any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,
(f) any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
(g) any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
Can I challenge a suspect will?
A suspect will may be able to be challenged in Court, including where the will has been altered after being made, or the signature has been forged or the will-maker was not of sound mind at the time or that undue influence was exercised over the will-maker when the will was drafted. Such challenges involve proving your case with enough supporting evidence to convince a Court.
Persuasion of the will maker by someone who stands to gain from a will may not amount to undue influence. Generally, for a Court to find undue influence with respect to a will it has to be satisfied that the will-maker’s mind was coerced to such an extent that the resulting will was contrary to the will-maker’s real intentions.
My mother and I haven’t spoken for years – can I still claim from her Estate?
Estrangement from the deceased does not necessarily prevent you from being able to successfully bring a claim. In the recent case of Bourke v Keep a daughter had not had a relationship with her mother for 38 years after a falling our when the daughter was 20. In fact the deceased had written in the will “I have made no provision in this my Will for my daughter… because of her complete lack of concern or contact with me and other members of my family over a long period of time”. However after considering the circumstances of the estrangement and other circumstances in the case, the Court awarded the daughter $200,000 from the Estate. The Estate was worth approximately $690,000.