Many of my clients ask me about contesting wills. Some of my clients wish to leave a family member out of a will. Others have been left out.

Here is a brief rundown on the current state of play.

Who can claim?

Children and spouses can make a claim.

De facto spouses, including de facto spouses who have not been in a relationship for more than two years can make a claim.

Former, yes former wives or husbands can make a claim.

People who have been dependent upon you can make a claim.

Parents, siblings and grandchildren cannot claim, unless they have been dependent.

Are there Time Limits?

In New South Wales, claims must be commenced within 12 months of the date of death. Claims outside this period of time require leave to be granted by the court, which is only granted in limited circumstances.

Different time limits apply for claims made outside New South Wales.

What does the court take into account?

The court considers whether the will leaves “proper and adequate provision”.

This is assessed in light of the financial needs of the claimant.

“Disentitling conduct” of the claimant is relevant. This may include violence or estrangement.

Proper and adequate provision is assessed with reference to one’s “moral obligation” and “prevailing community standards”.

Yes, the law creates a degree of uncertainty. There is no mathematical formula that is applied.

How much does a claim cost?

If the parties are reasonable, claims can be resolved relatively cheaply. A deed of settlement and release can be prepared and executed by the parties for less than $3,000.

If the matter goes to court, it is normally resolved at mediation, at a cost to the estate of around $50,000.

If the matter goes to a hearing the cost to the estate can exceed $100,000.

A successful claimant will normally have the bulk of their legal fees paid from the estate.

How do I leave someone out?

There is no point leaving someone a $1 inheritance.

I recommend either leaving them out entirely or leaving them an amount that is at the bottom-end of what they could potentially claim.

Either way, you should record your reasons in writing to be retained safely with your will, to be used as ammunition to defend a claim if necessary.

What is Notional Estate?

These are assets that can be clawed-back into the estate and claimed upon.

Examples include superannuation and jointly held property.

Gifts made during the deceased’s lifetime, within 3 years of the date of death, can also be clawed-back.

These are complex claims.

Talk to an accredited specialist.

 

This article is intended to be for information and educational purposes only and cannot be relied upon as legal advice. The information may not apply to your circumstances or to your particular situation. If you need specific advice or you have any questions, we welcome you to contact us directly.