He didn't leave me anything

Date: May 05, 2009
Document Type: Newsletter

When someone dies, the terms of their will can cause jealousy, distress or upset in a surprising number of cases. What can someone do if they think that they have not been treated fairly in a will?

The Succession Act allows a court to vary the provisions of a will if an "eligible person" has not been adequately provided for.

ligible persons include: -

  • A husband or wife
  • A de facto partner, including a same sex partner,
  • A former spouse or partner,
  • A child or grand-child,
  • Someone who has ever been dependant on the deceased,
  • In some circumstances, someone who has lived in the same household as the deceased.

Although former spouses and partners are on the list, if they have had a Family Law or De Facto property settlement following the end of the relationship it is virtually unknown for them to also be allowed a Succession Act claim-that would usually be a second bite of the cherry!

The Act lists the matters which a court may consider in determining a claim, most of which are commonsense. The major ones of these are:-

  • The nature and the duration of the relationship between the applicant and the deceased,
  • Any obligations and responsibilities owed by the deceased to the applicant and any other beneficiaries,
  • The size and nature of the deceased's estate,
  • The financial positions of the applicant and of other beneficiaries,
  • If the applicant has a spouse or partner, that person's financial position,
  • Whether anyone involved has a disability,
  • The applicant's age,
  • Any contributions, financial or non-financial, which the applicant has made to the deceased's assets or welfare,
  • Any provisions or assistance given by the deceased to the applicant, whether during their lifetime or in the will,
  • The applicant's character and conduct both before and after the death.
  • Anything else which the court sees as relevant.

As you can see there is a pretty broad brush approach open to the court in determining a claim. Without being too cynical about the relationship between the law and morals, it is probably fair to say that the court is looking at moral claims and fairness.

Courts accept that it is the deceased's wealth, and the deceased's wishes expressed in their will play a strong part in determining the outcome of any claim. The broad discretion given to a court does not mean that any claim with whatever justification will succeed.

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