Contested Wills

At Baker Love Lawyers, we advise clients to plan ahead. Many people are pro-active in relation to their Estate planning documents, ensuring that their Wills are up to date and that they have enforceable Power of Attorney and Enduring Guardianship documents in place. Often however, and for whatever reason, children or other family members are ‘left out’ of the Will.

There may well be a very good reason for the exclusion of a child, but it will not prevent the child commencing proceedings for provision out of an Estate. Under the Succession Act 2006 (NSW) an ‘eligible person’ may make a claim against an Estate should they consider they have not been adequately provided for.

An eligible person is usually a spouse, de facto spouse or a child but can be another member of the household who was dependent on the deceased person. If a person is eligible  in accordance with the Succession Act, they have the right to seek from a Court an order for further provision from the deceased’s person’s Estate if they can prove they have not been provided for adequately . The order can result in the eligible person becoming entitled to a part of the Estate, even if they were not included in the Will, or receive a larger share of the Estate assets than they were given in the Will.

A Court needs to consider a range of issues when assessing an order to contest a Will.

There are a range of issues which a Court has to consider when considering the making of any such order with these issues including:

1. Any family or other relationship between the person making the application to the Court and the deceased person including the nature and duration of the relationship
2. The nature and extent of any obligations or responsibilities owed by the deceased person to the the person making the application
3. The nature and extent of the deceased persons estate
4. The financial resources and financial needs both present and future of the person making the application
5. If the applicant is cohabitating with another person, then the financial circumstances of that other person
6. Any physical, intellectual or mental disability of the person making the application
7. The age of the person making the application
8. Any contribution of the person making the application which that person has made to the acquisition, conservation and improvement of the Estate of the deceased person
9. Any provision made for the person making application by the deceased person during the deceased persons lifetime
10. Whether the person making the application was maintained by the deceased person either wholly or partly prior to the demise of the deceased person
11. Whether any other person is liable to support the person making the application
12. The character and conduct of the person making the application before and after the death of the deceased person
13. Any other factor which the Court considers relevant

We acknowledge that this can be a highly emotionally charged situation.

Baker Love Lawyers has acted in many Contested Estate matters, on behalf of executors of deceased estates and for excluded beneficiaries. We have an experienced and professional team to manage your matter in a proficient and pragmatic way, whilst still remembering that the dispute usually involves family members and may be a highly emotionally charged situation.

We provide just the right balance between being supportive where required and assertive when it comes to enforcing your rights. At all times, Baker Love Lawyers will ensure that your legal interests are protected to the fullest extent.

Contact us now for more information on Contested Wills.

Solicitors acting in the area of Contested Wills:
	Terry Morgan Partner		Andrew Knight Partner
	Hura Herman Consultant		Christine Knoll Associate