July 4, 2023

After the funeral, the wake and the initial grief has passed, it may come as an unpleasant surprise to find that your name does not appear in the Will of a deceased love one, or that the amount left to you is inadequate.

For example, maybe the deceased failed to make any valid Will, and distribution of their Estate under the laws of intestacy will not adequately provide for you.

What now?

The starting point in New South Wales law is that each person is entitled to leave their assets as they wish – but that’s not the end of it. Under the Succession Act, a Court can adjust the terms of a Will where the Court finds that the deceased should have made a greater provision for a beneficiary.

This doesn’t just give open slather for anybody to apply, as the claimant must fall within the categories of eligible persons set out in the legislation. These are:

  • a wife or husband (including de facto and same sex) at the time of death;
  • a child of the deceased;
  • a former wife or husband of the deceased;
  • a grandchild or member of the household of the deceased who was at some time dependent (wholly or partly) on the deceased;
  • a person with whom the deceased was in a close personal relationship at the time of death.

In one case, a lodger who had provided lengthy close care for an elderly person was successful in making a claim.

Of course, a Court will not blindly admit every claim by an eligible person. The legal principles to be applied have been carefully developed in case law. Back in Victorian times it was considered that where the deceased had a “moral duty” to look after someone in their Will, a Court would consider judicially amending the Will. It is not difficult to see that a Court in those days might intervene if a spinster daughter looked after her aged parents until their deaths, then discovered her parents had left all the family title and estates to her brother, their son and heir.

In the modern era, the question is addressed from two perspectives. Firstly, the Court examines whether an ordinary person in the community would consider, in all the circumstances having regard to contemporary social standards, that provision should have been made in the Will for a claimant. Secondly, the Court will compare the relative wealth (or not) of the claimant as against the beneficiaries named in the Will and their various future needs. For example, any attempt made by a person to cut their minor child out of their Will, a child who has the costs of upbringing and education still to be met, has a high likelihood of being doomed.

“But they were estranged and the child didn’t go to see her, doesn’t that count?” we often hear. The behaviour of a person towards the deceased is a factor to be taken into account but so is the behaviour of the deceased. Where the estrangement of a child is involved, a Court may form the view that the parent was the person who should have been acting like a grown-up in the relationship.

“My friend says I should get…” is another common plea. With over 100 years of case law to be applied to your situation, it is important you obtain advice from someone who understands the whole area of law and can reliably advise you as to how the law applies to your particular set of facts. To go off on a wild goose chase without that could cost you more heartache.

There is a usually a time limit of one year from the date of death to make a claim under the Succession Act, so if you think you have a claim under the Will of a deceased relative, make sure you don’t leave it to the last minute to get some advice.

Read more Shipton & Associates blog posts here.

This information and information published on our website and social media sites is general in nature and for information and entertainment purposes only.  This information does not constitute legal advice and should not be relied upon as such.  If you require legal advice which takes into account your personal circumstances, please contact us for an appointment.