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Looking to the future - preserving Your last Will & Testament

future generations

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,