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How the size of the deceased’s estate can impact contesting wills cases

When the Supreme Court of New South Wales is asked to rule on a contesting wills case, a number of factors will be taken into consideration.

These are outlined in the Succession Act 2006 (New South Wales).

Once it’s been demonstrated that an applicant is eligible to contest a will, the judge will then need to determine whether or not to make a family provision order.

To make this decision, the judge will look at:

– The relationship between the applicant and the deceased (e.g. whether they were family, such as a spouse or child, or a de facto partner). The length and nature of the relationship (e.g. how close the applicant and the deceased were) may also be taken into consideration.

– Any “obligations or responsibilities” the deceased owed the applicant.

– The financial needs – both present and future – of the applicant.

– The physical and metal capacity of the applicant (e.g. whether they are suffering from a disability), as well as their age.

– Any provision made for the applicant by the deceased, whether during their life or out of their estate.

– If the applicant was dependent, either partly or entirely, on the deceased at the time of their death.

– The “character and conduct” of the applicant before and after the will-maker’s death.

– The “nature and extent of the deceased person’s estate”.

This final point includes property “that is, or could be, designated as notional estate of the deceased person” and any charges the estate may be subject to.

How are these factors used in real-life inheritance disputes?

A recent contesting wills case that was heard by the Supreme Court of New South Wales involved a 73-year-old man who died intestate (without a will), whose daughter brought a family provision claim against his estate.

The entirety of the deceased’s estate was given to his wife, Mica. The judge was called upon to decide whether a lump sum from this estate should be paid to the deceased’s daughter, Rebecca.

In the write-up of the Supreme Court hearing, the judge said the size of the estate was a “significant consideration” in determining whether or not to make a family provision order, and what size it ought to be.

“The order for provision should be no more than is necessary to make adequate provision for Rebecca’s proper maintenance and advancement in life,” said the judge.

“I must take into account, and give weight to, the obligation owed to Mica as his wife and the rules of intestacy that provide, because of the size of the estate, that the deceased’s whole estate passes to her”.

In the end, it was decided that $32,000 should be granted to Rebecca.

For more information on contesting wills cases, get in touch with contesting wills lawyers today.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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