Sometimes when a family member passes away some of the deceased's relatives believe that they have not been adequately provided for in the deceased's will.



These persons are often current or former spouses, de facto spouses, children or step children. Sometimes grandchildren also may make a claim as well as other persons who have, at some time, been at least partially financially dependant on the deceased and a member of the deceased's household. Frequently the deceased is viewed as having had a moral obligation to make some provision for that person on their death.

In these circumstances it may be possible to make a claim under the Family Provision Act 1982 (NSW). Proceedings for an order under the Family Provision Act must be commenced within 18 months after the death of the deceased person. The court has the power to extend the time for commencement of proceedings where sufficient cause is shown for the application not having been made within the 18 month period.

In order for a court to alter the deceased's will the court must be satisfied that the deceased failed to make adequate provision for the “proper maintenance, education and advancement in life” of the person making the application. Whether the deceased made “adequate” or “proper” provision depends on all the circumstances of the case.

For this reason courts consider a wide range of factors such as: the wealth of the deceased, the number and needs of other dependents and beneficiaries, the age and capacity of the applicant and the relationship between the applicant and the deceased.

Where a court is satisfied that the deceased failed to make adequate and proper provision for someone, the court then decides what, if any, provision should be made for the applicant. In making this second determination, courts again consider a wide range of factors. For instance, if the applicant is a person with an intellectual disability the court may consider issues such as the availability of social security benefits and the extent to which the person's disability inhibits his or her ability to gain employment.

Undue Influence & Duress

Courts can declare a will to be invalid in situations where it was made under duress or undue influence. In either situation, someone attempted to influence the terms of the will. Duress can be physical, psychological or in the form of a threat. Actual evidence of duress is required.

Undue influence can arise in circumstances where a relationship exists between a person making the will and another person such that the other person was in the position to exert some power over the person making the will to make the will in a certain way. Most often the person exerting the undue influence is likely to be a family member.

Incapacity

A will can also be challenged in the event that, at the time it was made, the person making the will lacked the necessary legal capacity to make the will. In effect, this means that the person making the will, at the time, did not understand the nature and effect of a will they were making, or were unable to make rational decisions regarding the distribution of their property.

This situation most frequently occurs in relation to the elderly, people in frail health, or those suffering from an illness which affects their mind.

In almost all cases, medical evidence as to the person's lack of capacity will be required to establish the incapacity at the time the Will was made.

Contract to Make a Will

In some situations, people (usually married or de facto couples) may choose to enter into a binding contract to make their wills in a certain way. Usually both people make a will in accordance with the contract at or about the time the contract is entered into.

It sometimes happens that one of those persons may make a later will which is inconsistent with the contract, often without telling the other contracting party about their new will, or perhaps after the death of that person.

Where the contract regarding the making of the wills has been properly drafted and is legally enforceable, persons affected by a breach of the contract may be entitled to make a claim for damages or other relief from the court.