How ironclad is a will? Can I make a provision claim?

Published 01 Jun 2017

Lawyers often advise people to produce a will to help ensure their estate is distributed according to their last wishes so that loved ones are financially supported for the future.

You can be forgiven, therefore, for assuming that wills are ironclad documents that have very little chance of being overturned. After all, a valid will that sets out the deceased's intentions can seem pretty clear-cut.

However, you may be surprised to learn that people who contest the wills of loved ones are often successful. Research from the University of Queensland and several other institutions revealed in 2015 that roughly three-quarters of will disputes are ruled in favour of the plaintiff.

Current and former spouses were the most likely to receive a larger proportion of the estate, with 83 per cent of claimants successful. Children enjoyed a favourable outcome in 76 per cent of cases.

Should I pursue a claim?

In NSW, if you feel a loved one has inadequately provided for you in their will, you can file a family provision claim. Pursuing this course of action is only possible if you are an eligible person under the appropriate legislation.

This means you must be:

  • A spouse or de-facto partner of the deceased, including same-sex partners;
  • A child of the deceased;
  • A former spouse or partner of the deceased;
  • A dependent of the deceased, whether this was partly or wholly, and at any particular time;
  • A grandchild of the deceased who was, at any particular time, part of their household.

Eligibility is not the only criteria you must meet, however, as you must also offer evidence of why you feel that your loved one failed to adequately provide for you.

Factors taken into consideration

Should your case reach the courts, a judge may need to rule on your family provision claim. They will consider various financial, health and lifestyle factors to gauge your requirements from the estate. 

These include:

  • Your current and future financial situation;
  • Any outstanding savings or debts;
  • The relationship you had with the deceased;
  • You or your dependents' educational and financial needs;
  • Any healthcare costs you may face;
  • Any gifts or financial assistance the deceased provided to you while alive.

We are often asked whether being estranged from the deceased at the time of their death will prevent a judge ruling in your favour.

The answer is not necessarily. However, no two cases are the same, and the courts will take into account who was most responsible for the estrangement and whether any efforts were made to reconcile.

Would you like to discuss contesting a will? Please contact Gerard Malouf & Partners Will Dispute Lawyers.

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