Will dispute lawyers are concerned with the written legal document or testament stating one’s wishes for the distribution of their property following their death. This includes nominating family members or otherwise as beneficiaries and executor – that is, who is to obtain assets, and whom you wish to administer your property.
This can be a tricky area to navigate, and family members may feel like they have been unfairly left out of this statement. This is why some chose to dispute or contest the document – and this is where will dispute lawyers are able to help.
Who is eligible?
Common questions posed to will dispute lawyers include who the testament is applicable to. By the Family Provisions Act 1982 (NSW), the eligible persons to the testament of a deceased individual are…
- Wife or husband
- Former wife or husband
- An individual who at a particular time was entirely or partly dependent upon the deceased
You must fall into one of the above categories (relationships with the deceased) to be ‘eligible to claim’. But, does being a family member make one automatically make one eligible? The answer according to will dispute lawyers in NSW is… not always.
It’s important to ensure the family member of concern has/had some form of financial dependency on the deceased. For example, a son of the deceased may be shown to be at risk of severe financial problems due to the lack of support from the deceased. Once this dependency has been demonstrated, there are additional factors to be considered…
If one has been left out of the deceased’s testament, that oftentimes is indication of problems that have arisen within the family. We need to understand these. This may be, say, contact having been lost for a number of years between relatives.
Why this is may vary from case to case, and it’s important for the context to be examined. For example, lack of contact may be explained by the deceased’s alcoholism or violent behaviour towards the family member making the claim.
Is there a time limit to claims?
In NSW, will dispute lawyers inform that there is a 12 month timeframe within which one can lodge a claim about the deceased’s testament. Unless you have good reason…
Can something be done about family disputes like the above, or is it too late?
For example, in the case of contact being lost between a daughter and her father due to his alcoholism, the NSW Court will dispute lawyers may be convinced to allow the claim to proceed.
What happens to Moral Obligation?
Moral obligation – a conscientious duty involving ethical consideration of what’s right and wrong – may have been held between the deceased and a spouse or child. That is, they had a duty to provide financially for this person.
Generally between the deceased and life-partner of child, this is assumed. However if it can be proven before the Court, as will dispute lawyers in NSW explain, that an estranged relationship was shared, this assumption will be lifted.
So, what are the 4 main factors to show to be legally entitled to claim?
To recap, the main things you need to show for your claim to be permitted, as will dispute lawyers in NSW have informed, are..
- Eligible person – you fall into one the above types of relation to the deceased
- Financial dependency – you have been entirely or partially dependent on the deceased to avoid financial hardship
- No contact is not your fault – for example the deceased engaged in substance abuse or violent behaviour
- 12 month time limit – to claim, or longer in lieu of good reason