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Back to "Wills and Estates Newsletter - April 2017"


What happens when it all goes wrong? Estate law disputes – what you need to know

A claim under the Succession Act 2006 may arise if someone believes you have not provided a sufficient share of your estate to them in your Will, or you have left them nothing at all.

Who can make a claim?

To make a claim, the Court must be satisfied that the applicant falls within the category of ‘eligible persons’. These include:

  • the husband or wife of the deceased;
  • a child of the deceased;
  • a de facto spouse with whom the deceased was living at the time of death;
  • a former spouse of the deceased;
  • a grandchild of the deceased who was wholly or partly dependent upon the deceased at some time during the lifetime of the deceased person;
  • any other person who was wholly or partly dependent upon the deceased at some time during the lifetime of the deceased person and was a member of the deceased’s household; and
  • any person with whom the deceased was living in a close personal relationship at the time of death.

What does the Court consider?

Assuming the applicant is an ‘eligible person’, the next step is for the Court to determine whether adequate provision has been made for them.  When assessing the validity of a claim, the Court will consider:

  • the provision made to the applicant under the Will;
  • the nature and extent of the deceased’s estate and any liabilities;
  • the applicant’s relationship to the deceased, including the nature and duration of the relationship;
  • the nature and extent of any obligations or responsibilities owed by the deceased to the applicant;
  • the needs and circumstances of the applicant including financial resources, earning capacity, age, health and other relationships;
  • any provision the deceased made to the applicant during their lifetime;
  • the circumstances giving rise to the applicant’s claim for relief;
  • particulars of any acknowledgement by the deceased as to the applicant’s claim on the deceased’s bounty;
  • the deceased’s relationships with the existing beneficiaries;
  • the needs and circumstances of the existing beneficiaries;
  • the comparative claims of the existing beneficiaries; and
  • any other matters the Court considers relevant.

These facts are usually set out in an affidavit, annexing financial statements and medical information as required.

The majority of proceedings are resolved at mediation without reaching a hearing. Where a matter is heard, any entitlement to be provided to the applicant is calculated as at the date of the hearing based on the applicant’s needs and circumstances at that time.

Is there a timeframe to make an application?

An application must be made to the Court within 12 months of the deceased’s death. The Court may grant an extension if the applicant can establish a sufficient cause for the delay and demonstrate the beneficiaries under the Will would not be prejudiced by the extension.

Why bother making a Will if it can be contested?

Although ‘eligible persons’ can claim under the Succession Act 2006, there remain a great number of benefits to making a Will. The core benefit is that a Will provides certainty that your assets will pass in accordance with your wishes.

Just because a Will can be contested, does not mean it will or that any claim will be successful. Even if a claim is successful, the Court will only disturb the Will to the extent it needs to make provision for the aggrieved eligible person.

Hanaan Indari, Partner

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