Disputed Wills

Although the starting point is that each person has the freedom to decide who they leave their property to when making their Will, in fact this freedom is restricted by statutory laws in most Australian States and Territories. 

In New South Wales for example, the Family Provision Act 1982 allows “eligible persons” to take Court action against an Estate in the Supreme Court to try to vary the terms of a person’s Wills to obtain more than they would otherwise receive under the Will. The Court may, in its discretion, make additional provision for that person (at the expense of other beneficiaries) where the Court is of the view that proper provision was not made by the ‘testator’ for the particular eligible person making the claim.

The main categories of “eligible persons” who can make such a claim are:

·          the spouse of the deceased (and this can in some cases include an ex-husband or wife)

·          the children of the deceased (which can include children who are not the deceased’s own children)

·          a person who was wholly or partly dependent upon the deceased person

·          grandchildren who were members of the deceased’s household

As this list shows, the potential range of claimants can be quite wide.  It is important that people making their Wills and executors and beneficiaries involved in estates consider whether there any likely “eligible persons” and obtain expert advice if a claim is made.