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WILL DISPUTES IN NSW

WILL DISPUTES IN NSW – FAMILY PROVISION CLAIMS

 When a family member passes and you have been left out of the will or if you think that you have not been adequately provided for in the will, you could consider disputing the will by making a family provision claim. Making a family provision claim would enable an eligible family member to receive a greater share of the deceased’s estate. We are observing an increasing rise of will disputes and contested estates.  

Who is Eligible to make a Family Provision claim?

In New South Wales, section 57 of the Succession Act 2006 allows certain people to make a family provision claim, for provision from a deceased person’s estate. The categories of “eligible persons’’ include: [...]  READ MORE →

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Notional Estate – what does it mean

Notional Estate – what does it mean?

Introduction

Will disputes, matters relating to distribution of a deceased estate, contested wills and the rights of beneficiaries are issues that an experienced will lawyer understands.

 For various reasons, a will maker may form an opinion that they are not morally obligated, or duty bound to make provision for certain persons in their will. For example, where a will maker has been estranged from their child for several years, they may not feel duty bound tomake any provision for this child.

 In the context of blended families, will makers often are faced with hard decisions about who they would like to benefit more from their estate given the competing financial needs of adult children from their previous relationship and their current spouse. Having made those hard decisions, asking an experienced wills lawyer to prepare the will or will update will lessen the risk of a successful will dispute. [...]  READ MORE →

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Will Disputes and Testamentary Capacity

Will Disputes and Testamentary Capacity

The term testamentary capacity is relevant in will disputes as it concerns the question of the Will maker’s intention at the time of conveying their wishes. There is a long standing principle in all aspects of law that without capacity, a person is not capable of understanding the consequences of their actions and therefore is unable to instruct a solicitor.

Through the case of Aleta Gooley v Brett Gooley (2021), the court explains that lawyers when receiving instructions from a client making a will have a role to play in determining whether the will maker or testator has capacity. An experienced solicitor is used to dealing with people making wills and is attuned to the red lights that flash when a person who is of suspect capacity comes across their path, and therefore provides valuable evidence of the Testator’s testamentary capacity. [...]  READ MORE →

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Will Disputes

Joint Property and your Will

Most Will Disputes occur from contention over how the Estate was supposed to be divided among the beneficiaries, rather than how the law entitles those to the assets in the Estate.

The primary example being a property purchased in a couple’s names as Joint Tenants. Upon the death of one owner, the law of succession states that the property is automatically passed to the joint owner on title. If the deceased’s Will states that their share of the property is to be passed to their beneficiaries rather than what the law of succession demands, this is how Will Disputes occur. [...]  READ MORE →

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Is my sibling entitled to more inheritance than me?

In some circumstances, there are actions that you might be able to take if you disagree with the distribution of the estate. These are commonly bringing a will dispute or contesting a will through a family provision claim.

An unequal distribution might not have been intended by the testator of the will. A will dispute or challenge can be brought by you, if you have standing. See our previous blog HERE on standing and non-family members disputing a will for more information.

One example of this is Hobhouse v Macarthur-Onslow [2016] NSWSC 1831. The deceased, Lady Dorothy Wolseley Macarthur-Onslow, executed a will in 1988 which provided for an equal distribution of her estate between her two children; Lady Hobhouse, the plaintiff, and Mr Macarthur-Onslow, the defendant. In 2002, Lady Macarthur-Onslow was being treated for dementia. In 2004, she executed another will, which was to be the final one before her death in 2013. The effect of the second will was to permit Mr Macarthur-Onslow control to distribute a substantial portion of the property of the deceased, including to himself. The plaintiff initiated a will dispute on the basis of a lack of capacity of her mother to execute the will. [...]  READ MORE →

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Can a non-family member initiate a Will dispute?

Not everyone can initiate a will dispute. A person intending to bring an action for a will dispute must meet the requirement of standing.

A person is considered to have standing where he or she has an interest in the estate of the deceased. A person who may satisfy the requirement of standing might include a person who was entitled to share in the estate under the valid will preceding the disputed will.

However, even where a person may be unable to dispute a will due to their lack of standing, they may be able to contest a will. [...]  READ MORE →

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Initiating a Will Dispute due to Mental Capacity

Whether the person who made the will had the requisite mental capacity is one of the grounds for initiating a will dispute.

Mental capacity is called ‘testamentary capacity’ in the context of wills and is required for a person to make a valid will. The test for mental capacity comes from Banks v Goodfellow (1870), which requires a person making a will to:

  • understand the nature of the act and its effects;
  • understand the extent of property of which he or she is disposing;
  • be able to comprehend and appreciate the claims to which he or she ought to give effect and that no disorder of the mind would bring about a disposal of it which would not have been made otherwise.

Should a person fail to meet these requirements at the time the will is executed, they will lack the requisite mental capacity. A will made by a person lacking mental capacity is void. [...]  READ MORE →