Passing the first stage of a family provision claim

Published 12 Apr 2016

When a loved one passes away, it can be a difficult period in your life. Your feelings of loss can be compounded, however, if the will that was left behind by the deceased does not properly provision for you.

In times like this it is important to talk to an experienced contesting wills lawyer. With their expertise in your counsel, you can assess whether your claim is a valid one.

A recent case before the New South Wales Supreme Court illuminates a key requirement for those looking to dispute a will, as well as the consequences if they do not have the right kind of legal advice.

Satisfying the legal requirements when contesting a will

Family provision claims are one way to ensure your relationship with the deceased is properly reflected in their will. However, to ensure your claim is successful, you need to have the right evidence available for the court.

A case in front of the Supreme Court highlights the need to have proper financial records in place. The claim for family provision was based on Section 59 of the Succession Act 2006 in relation to the estate of the plaintiff’s father.

The Court came to the opinion that the application should be dismissed because it failed to pass the ‘first stage’ of a family provision claim. Specifically, the conclusion was based on the unavailability of clear evidence of the plaintiff’s financial position.

The main reason for this was the plaintiff’s occupation as a self-described ‘professional punter’. While he oscillated between multiple financial positions throughout his life, the lack of any records of his annual earnings contributed significantly to the failure of the claim.

To overcome issues such as these, it is essential that those looking to make family provision claims talk to a lawyer before hand. Their experience making claims on behalf of clients can help you correctly overcome issues that stem from poor bookkeeping.

At Gerard Malouf and Partners, we offer a no win, no fee basis that means you are not bogged down by upfront fees. Instead, we only take payment if your claim was successful.

If you would like to learn more about contesting a will, talk to the specialists at Gerard Malouf and Partners. Do not delay, talk to a GMP lawyer today.

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