Looking to the future - preserving Your last Will & Testament

September 24, 2018

 

Having a will is one of the most important things you could do to ensure that your affairs will be managed according to your wishes. However, there are eligible persons who can contest your will[1]. This is something to keep in mind and it’s important to seek legal advice when making your will, especially if you have a blended family or estranged family members. This article looks at these circumstances, what to look out for, and when you should update your will?

 

Amos v Hogg[2]
 

Last month, the Supreme Court of NSW heard a matter where the estranged adult child of the deceased (Mr. Amos) filed a claim a family provisions order. Mr. Amos was one of two adopted children and had been estranged with the deceased for two years which involved an apprehended violence order (AVO) taken out against him. The claimant was given 10% of the estate (approximately $62,000), which was a significant decrease from provisions made for him in wills prior to the estrangement.

 

The Court determined that the initial percentage was not adequate for the claimant’s proper maintenance and advancement in life, awarding him with an additional 10% of the estate. Asserting that such decisions will depend on the specific circumstances of each matter. In this case, the claimant had a debilitating medical condition and no earning capacity. He was a loving son for most of the relationship prior to estrangement.

 

This judgement shows us that even years of estrangement may not extinguish one’s ability to successfully contest a will.

Dis-entitling conduct

Although Mr Amos’ successfully made a claim on his mother’s estate poor behaviour can be considered disentitling and see a reduction in the provision granted to the claimant.

NSW family provisions legislation prioritises need over conduct. Such behaviour can significantly reduce the claim or eliminate the claim. In Haskakis v Hatzopoulos[3] hostile and abusive letters from the daughter/claimant to her mother (the deceased) did not completely disentitle the claimant. Instead, the court considered the daughter’s behaviour an important factor in determining the provision.

Other examples of dis-entitling behaviour are physical and mental abuse over a period, crimes against relatives, and murder.

 

Who can challenge my will?[4]

  • your spouse,

  • former spouse(s),

  • de facto partner(s),

  • your children (includes adopted children),

  • your grandchildren,

  • persons wholly or partly dependent on you,

  • members of your household,

  • persons with whom you have a close personal relationship.

On what basis?[5]

  • If there had not been adequate provisions in the will for the proper maintenance, education or advancement in life of the eligible person,

  • if the Court thinks there ought to be provisions made for the maintenance, education or advancement in life of the eligible person,

 

What does the court consider as adequate provisions?
 

It is stated repeatedly that there must be “adequate provisions for the proper maintenance, education or advancement in life”, but what does that mean?

For this, the courts will look at the following:[6]

  • the nature and duration of the relationship,

  • the extent of any obligations or responsibilities owed by you and whether you are liable to support them,

  • the size and nature of your estate,

  • their current and future financial resources, earning capacity, financial needs,

  • the financial circumstances of any other persons living with the eligible person,

  • any physical, intellectual or mental disability of the eligible person,

  • their age

  • contributions they have made in regards to your estate or your welfare,

  • provisions you may have made for them,

  • evidence of your intentions (such as statements),

  • whether they were wholly or partly dependent on you,

  • their conduct,

  • relevant Aboriginal or Torres Strait Islander customary law,

  • any other relevant matters.

 

How to make my intentions clear?
 

Seeking professional advice is highly recommended to assist you in making your intentions clear and to give your last will and testament the best possible chance of surviving any challenge to it.

 

When should I update my will?
 

We recommend you review your will every two years to ensure that it still aligns with your wishes and your circumstances and those of your beneficiaries.

You need to update your will if:

  • you marry or divorce

  • you start or end a de facto/registered relationship,

  • you have new members in your family (e.g. birth of children or grandchildren),

  • you experience changes in your financial circumstance,

  • any of the beneficiaries on your current will passes away,

  • any of the executors or guardians in your current will passes away or are unable to act anymore,

  • you wish to change the people named in your will,

  • you retire,

  • any other major changes in your life.

 

This article contains general information only and is not intended to be legal advice. For assistance specific to your circumstance please contact us at voice@voicelawyers.com. Voice Lawyers can help you with your will and ensure that it reflects your wishes.

 

Voice lawyers is located in Avaya House in Macquarie Park and Chifley Tower in CBD.

P. (02) 92318602

 

 

 

[1] Succession Act 2006 (NSW) s 57.

 

[2] [2018] NSWSC 1226.

 

[3] [2015] NSWSC 1408.

 

[4] Succession Act 2006 (NSW) s 57(1)-(2).

 

[5] Ibid s 59(1)-(3).

 

[6] Ibid (NSW) s 60(1)-(2).

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