Contesting a Will – Does Testamentary Freedom Exist?

Published 29 Sep 2015

Author: Garbis Kolokossian

Contesting a Will has been on the rise in recent times and the Testator’s wishes have been put to the test and scrutinized by the Courts.

Whilst most would consider there Will to be a concrete declaration of their wishes with respect to the way in which their property is dealt with upon their death, it is important to note that if a Testator’s wishes are not in line with the Family Provision Legislation, the Court may be called upon to ensure that family members are provided for.

Family Provision Legislation provides a balance between what Testator’s wish and what the Court considers to be fair and adequate provision.

Under the Family Provision Legislation in New South Wales, you are an eligible person to contest a Will if you are the spouse, de facto, child (including adopted child) or a person who was wholly or partly dependant on the deceased and/or resided with the deceased in the same household.

If the Plaintiff is deemed by the Court to be an eligible person, the Plaintiff’s financial circumstances will be weighed up against any competing clients or beneficiaries of the Will.

When contesting a Will, the Court will consider the persons earning capacity and future needs, age and health as well as the size of the deceased’s estate and whether the Plaintiff received assistance from the deceased during their lifetime.

Family Provision Legislation and its interpretation by the Court has significantly impacted and challenged the Testator’s freedom however simultaneously ensuring that any eligible person contesting a Will who has not been adequately provided for by the Testator are looked after.

GMP Contesting a Will Lawyers has played a pivotal role in ensuring those persons who are eligible to make a claim, receive the best representation and are vigorously represented when contesting a Will.

If you have questions on whether or not you are eligible to make a claim, how to contest a Will and/or you would like some general information as to the likelihood of being successful of contesting a Will, contact GMP Contesting a Will Lawyers.

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