Atty. Czar Calabazaron
In NSW, it is often assumed that a person making a will (testator) has the complete freedom to dispose his property in any way or manner he wants upon death. A common case is when an heir (i.e. wife or children) is completely left out in the will. One may also have heard of extreme cases where the whole lot of a rich dead man’s estate was left entirely to his pet dog, to the exclusion of his wife and children.
While a testator can make a will detailing the manner his estate will be allotted upon death, even to the extent of excluding family members to a share of his bounty, it does not follow that his wishes will be upheld or respected by the NSW Courts upon death.
The Family Provision Claim (“FPC”) under the Succession Act 2006 (NSW) provides a legal remedy for an “eligible person” (applicant) to contest a Will. Simply stated, if a family member has been excluded or inadequately provided in a Will, they can bring a FPC within 12 months of the death of the testator and “challenge” the Will. The Courts may then “override” the wishes of the testator and alter the distribution of the estate to provide for adequate provision for the proper maintenance, education or advancement in life of the applicant.
There are 6 categories of “eligible persons” that may file a FPC under the Act: 1. a wife or husband; 2. a person who was living in a de-facto relationship with the testator ; 3. children, regardless of age; 4. a former husband or wife; 5. a person who was wholly or partly dependent on the testator and a member of the testator’s household at any time; and 6. a person who was living in a “close personal relationship” with the testator.
The FPC will only be suc cessful if the court considers that the testator made inadequate provision for the applicant’s proper maintenance, education and advancement in life. In considering this matter, the court generally looks at the applicant’s needs, the testator’s duty, if any, to make provisions in favour of the applicant in their Will and all relevant circumstances of the case.
The Court’s powers under the Succession Act places significant restrictions the testator’s freedom to dispose his estate. Indeed, there are several cases where the courts have made orders substantially different to the wishes of the testator, even in favour of persons expressly excluded from the Will.
It is therefore suggested that testators give careful consideration to the Court’s discretion under the Succession Act when preparing a Will. This may very well prevent expensive and costly legal battles that may arise in the future.