Wills and inheritance can be highly emotional subjects, particularly as family structures become more complicated. The rules and practices around bequests are not as simple as you might think and the way your beneficiaries and the courts may view the division of spoils after your death may not always align with your expectations.
The Succession Act NSW makes some significant changes to the provisions for making a claim against a Will. The changes mean that a spouse or ex spouse, grandchild, child or a dependent left out of your Will without proper maintenance or support may be able to challenge your Will. The definition of dependent has become very wide and includes anyone the deceased was maintaining or supporting. Claims must now be made within twelve months of the date of death (previously it was eighteen months).
The increase in the number of blended families has resulted in a rise in claims by adult children against a second wife. In a recent interesting case of Young & Grainger v Outtrim(2011) NSWSC 391, the deceased’s Will left the whole of his estate to his second wife of 32 years. The children of the deceased’s first marriage sought a family provision order out of the estate even though the deceased had made a statutory declaration explaining why he had not left anything to the children of his first marriage. In making provision for the plaintiffs, the court took into account matters including the financial position of each of the parties, the size and nature of the estate, the relationship between each party and the deceased and the relationship between the deceased and other persons who have legitimate claims upon the deceased’s bounty (the widow and her children). Contrary to the wishes of the deceased, one daughter received $650,000 and the other daughter received $290,000 out of an estate worth $3,640,000.
A claim on your estate is costly and may cause delays and serious stress to your family, so it is important that your Will is structured not only in line with your wishes, but also framed in a way that is unlikely to allow for challenge.
If you require expert advice on any of these matters or wish our legal team to review your current will please contact Andrew O’Donnell, Emma Heuston or Angela Boyd all of Edney Ryan Legal.