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Have You Been Unfairly Treated in a Will

The basic premise when making a will is that the Willmaker has the right to give their property to whoever they may choose. However, in New South Wales the Succession Act 2006 (NSW) allows some people to make a claim against the Estate of the deceased person if they have been left out of the will or feel aggrieved as to the amount that they have been given in a will.

To bring a claim under the Succession Act you must first be an eligible person. An eligible person in relation to the deceased means:

  • A spouse of the deceased person at the time of death;
  • A person who was living in a De Facto Relationship with the deceased person at the time of death;
  • A child of the deceased person;
  • A former spouse of the deceased person;
  • A person who was at any time wholly or partly dependent on the deceased person and, is a grandchild of the deceased person or was, at any time, a member of the household of the deceased person;
  • A person with whom the deceased was living in a close personal relationship at the time of death.

Categories (a)-(c) are entitled to make an application for provision as of right. However categories (d)-(f)must be able to demonstrate to the Court the existence of factors warranting their making an application. These may include the character and conduct of the applicant, financial circumstances and needs of the applicant, and any contribution by the applicant to the deceased’s welfare and maintenance.

Any application for a Family Provision Order under the Succession Act must be made within 12 months of the date of death of the deceased. An application can still be made even if the Executor has distributed the Estate. Further, the Court is able to make orders relating to any notional property of the deceased which would include any property that has been transferred up to 3 years prior to the date of death of the Willmaker.

At Bateman Battersby Lawyers Penrith our experienced team can assist you with all aspects of applying for a Family Provision Order.

For help getting your affairs in order, contact us