You hear a lot about “unfair wills'” in ads these days. On TV, billboards and radios, so many solicitors out there want you to fight an “unfair will”. You can’t blame them for wanting to earn fees but what you don’t find out so easily is, what you can do when making a will, to help make it less open to challenges.
So, we’re here to help! & Legal has years of expertise in both drafting wills and challenging “unfair wills”. We’re in the position to provide you with the necessary advice so that your wishes stay as they are after you have passed away. Why not give us a call or send us an email. If you want to know more, feel free to keep reading.
When you draft your Will, it is important to consider what provisions you have made for those that you have had a close personal relationship with during your lifetime. In New South Wales, certain eligible persons may challenge your Will if they believe that the terms of the Will are unfair and that you have not provided them with adequate provision.
An eligible person is defined in section 57 of the Succession Act 2006 (NSW) (‘the Act’) as:
(a) a wife or husband of the deceased person at the time of the deceased person’s death,
(b) a de facto partner at the time of the deceased person’s death,
(c) a child of the deceased person,
(d) a former wife or husband of the deceased person,
(e) a person who was 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,
(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
A “close personal relationship” is defined as ‘a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care (section 3(3) of the Act).
The Court then assesses and determines whether to make any “Family Provision Orders” or not based on whether adequate provision was made for the eligible person for their maintenance, education or advancement in life under the Will.
Therefore, to minimise the chance of your Will being challenged, it is important that when making your Will to consider that you are providing adequately for your spouse, children, former spouse or someone with whom you were in a close personal relationship.
If you want to know more, give us a call or send us an email. We’re more than happy to guide you in the right direction.