Contested Estates in New South Wales: Key Considerations
Contested estates can be a complex area of law, particularly when issues such as undue influence, changes to wills close to death, and claims by dependants arise. Understanding these elements is crucial for anyone involved in or considering contesting an estate in New South Wales.
Claims for Family Provision Against an Estate
New partners or step-family members may have grounds to contest an estate under the Succession Act 2006 (NSW). This Act allows certain individuals, including de facto partners and stepchildren, to make a family provision claim if they believe they have not been adequately provided for in the will. The court will consider various factors, such as the nature of the relationship with the deceased, the claimant’s financial needs, and the size of the estate.
In the case of Lodin v Lodin [2017] NSWSC 10, the court found that a former spouse who had already received a property settlement was precluded from making a claim on the deceased estate of her ex-husband. This case highlights the importance of previous financial arrangements and the claimant’s conduct towards the deceased.
Undue Influence by Third Parties
Undue influence occurs when a person is pressured or coerced into making decisions about their estate that do not reflect their true intentions. This can be a significant issue in contested estates, as it may lead to the invalidation of a will or certain provisions within it. In New South Wales, proving undue influence requires demonstrating that the testator’s free will was overborne by the influencer, resulting in a will that does not reflect the testator’s true intentions.
Changes to Wills Close to Death
Changes to a will made shortly before a person’s death can be particularly contentious. Such changes may be scrutinized for signs of undue influence or lack of capacity. The courts will consider whether the testator had the mental capacity to understand the nature and effect of the changes and whether they were made voluntarily. If a will is altered close to death, it is essential to ensure that the testator’s capacity is well-documented and that the changes are clearly communicated and witnessed.
This article is not legal advice. It is intended to provide commentary and general information only. Access to this article does not entitle you to rely on it as legal advice. You should obtain formal legal advice specific to your own situation. Please contact us if you require advice on matters covered by this article.
