Ignorance is not bliss when it comes to making a will

Posted on September 1st, 2014

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by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

I recently read an article which stated since 2005 the number of Will disputes reaching the Supreme Court has risen by almost 60%. While this is a considerable increase, it comes as no surprise to most lawyers. With the aging population, the changing nature of families and relationships and the increasing wealth of individuals, estate planning and succession law are becoming of great importance.

When people talk about “contesting a Will” or “Will disputes” they are usually referring to a Family Provisions Claim (FPC). An FPC is an application to the Supreme Court for an order that provision be made out of a deceased’s estate for a person’s maintenance, education and advancement in life.

An FPC may only be made by an “eligible person”, meaning someone who falls into one of the following categories (in relation to the deceased):

  1. spouse;
  2. de facto;
  3. child;
  4. former spouse;
  5. in a close personal relationship; or
  6. (i) wholly or partially dependent, at any particular time, and (ii) grandchild or a member of the household.

Once an applicant establishes they are an eligible person, a two stage process is applied by the Court to determine whether a claim will be successful. This involves looking at:

  1. whether inadequate provision was made for the applicant’s proper maintenance, education and advancement in life; and
  2. if so, what (if any) provision should have been made.

It is clear from the summary above that making a claim is not as simple as “being left out of a Will”. With FPCs increasing, the likelihood of these claims is an important consideration in estate planning. Carefully drafted Wills may significantly limit the scope and practicality of an eligible person successfully contesting a deceased’s Will.

Lana Black is a Solicitor at Mullane & Lindsay and practises primarily in residential and commercial property transactions and estate planning and administration.  If you require any assistance in this area please contact Lana Black to arrange a consultation or contact our Newcastle office.

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