It’s always difficult when a loved one passes away, but when a member of the family feels they have been left an unfair benefit in the Will, the time following the death can become even more distressing for the whole family. However, it’s important to remember that although a deceased person may have left a valid Will, many family members who have been left no benefit or insufficient benefit can challenge the Will by applying for a Family Provision Order.
What is a Family Provision Order?
A family member who has not been left any benefit or left less than they consider sufficient in the Will of a loved one may commence proceedings for a Family Provision Order under the Succession Act 2006 (referred to in this blog post as “the Act”). A Family Provision Order is an order made by the Court in relation to the estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.
Who is Eligible to Challenge a Will?
A person making a Family Provision claim must be an eligible person. An eligible person includes a spouse, a de facto partner, a child of the deceased, an ex-spouse, a grandchild, some one who has been dependant on the deceased (wholly or partly at anytime in their lives) and someone in a close personal relationship with the deceased.
What if the Family is Complicated?
In the case of Hedman v Frazer; Egan v Frazer  NSWSC 1915, the complications of family life were highlighted. The deceased was 58 years old when he died and he had a complicated family. The deceased first married when he was 18 and had 2 children from that relationship. After that marriage ended, the deceased then commenced a relationship when he was 33 years old and had a child from that relationship. That relationship ended after some years. When he was 50 years old, the deceased entered a de facto relationship and married just a week before his death.
There were Family Provision claims by the children from the deceased’s first marriage; the daughter from his second relationship and the deceased’s widow. In this case, although the family was complicated, each claimant was eligible to apply for a Family Provision Order.
Can I Challenge a Will?
Whether your case is simple or complicated the expert Wills and Estate lawyers at Antunes Lawyers in Sydney can help. Antunes Wills and Estate lawyers can assist you if you have any concerns that if you make a Will a family member will make a claim; or if you are a beneficiary of a Will and have been left less than you consider you are entitled to; or if you consider provision should have been made for you in a Will. We can also help with estate planning, probate, administration and litigation as well as making a Will.