A common question posed by our clients is: “who can challenge my will if they believe I should have left them something, or I have not left them enough?” While a willmaker has the freedom to distribute their assets as they see fit, this freedom is not absolute. It is crucial to regularly update your will for peace of mind in light of your changing circumstances.
Understanding Family provision Claims
Whilst a willmaker has the freedom to make a will leaving their assets to whomever they like, this freedom is nowhere near absolutely. It is still essential that you always update your will. In our experience, we see that people tend to focus on ensuring they have a will when they go overseas or when they purchase property but it is important for peace of mind to have a will at all times. In New South Wales, the law recognizes that a willmaker has a responsibility to provide for certain individuals who may have a “moral” claim to their estate. This is particularly relevant in the context of family provision claims, especially for those who feel they have been left out of a will. Here’s a summary of who can contest a will based on this legal framework:
Spouses
The law mandates that will makers have a primary obligation to provide for their spouse, whether they are married or in a de facto relationship. This means that the surviving spouse is entitled to make a claim against the estate. In today’s context, it is expected that a surviving spouse should receive the matrimonial home along with a contingency fund, reflecting modern community standards.
Children
Children are recognized as eligible claimants in family provision disputes. This category includes biological children, adopted children, minor children and adult children. While stepchildren may not automatically qualify, they can still contest a will if they meet specific criteria outlined later.
Adult children, particularly those from a previous marriage of a re-partnered parent, are increasingly making family provision claims, often in situations where they feel left out of will. This demographic represents a significant portion of claims.
Grandchildren
Grandchildren are not automatically entitled to make a claims; however, they may qualify under special circumstances. If a grandchild was financially dependent on the will maker, they may be eligible to contest a will. Merely receiving gifts or spending holidays with grandparents does not typically establish eligibility.
Other Dependents
If an applicant does not fit into the abovementioned categories, they may still have grounds to contest a will if they can demonstrate they were wholly or partially dependent on the willmaker and had lived in the same household at a certain point. This is where stepchildren may have grounds to commence a family provision claim and seek legal advice from a will disputes lawyer at Matthews Folbigg lawyers.
Contact Information
For further information or if you require assistance please contact our Wills & Estate Planning team or email info@matthewsfolbigg.com.au
