Left out of a Will? How to contest it!

by Graeme Heckenberg


Supreme Court Decision For Contesting A Will

A recent decision of the New South Wales Supreme Court has highlighted the ability of people who have been left out of a Will to successfully contest the Will and receive a distribution from the deceased’s Estate.

In Morgan v Bohm [2013] the applicant successfully contested the Will of the deceased of which she had been left out of. The applicant was successful in contesting the Will of the deceased and received a distribution from the deceased’s Estate of $225,000.

The Facts

The deceased left a Will in which his wife was the sole beneficiary. The majority of the deceased’s Estate was located in New Zealand, however the deceased and his wife owned a property as joint tenants in Sydney valued at $1,025,000.

The applicant and the deceased had been in a relationship for 11 years before his death. At one stage of the relationship, the applicant and the deceased had lived together in New Zealand. The Court considered the nature of the relationship between the applicant and the deceased and found that she was an eligible person under the Succession Act to make a family provision claim on the deceased’s Estate.

Only eligible persons as defined under the Succession Act are able to make a family provision claim and this is limited to:

(a) The wife or husband of the deceased at the time of their death;

(b) A de facto partner of the deceased at the time of their death;

(c) A child of the deceased;

(d) A former husband or wife of the deceased;

(e) A person who was, at any time, wholly or partly dependent on the deceased and who is a grandchild of the deceased or was a member of the household in which the deceased was a member; or

(f) A person who the deceased was living with in a close personal relationship at the time of the deceased’s death.

The deceased’s wife opposed the application on the grounds that the period the applicant and the deceased lived together was only 3 years and that the applicant had no financial dependence on the deceased after this time.

One of the main considerations of the Court in deciding the amount to award to the applicant, was her financial circumstances. The applicant owned her own home, however had only a small amount of superannuation on which she was currently drawing on weekly to cover her living expenses. In addition, it seemed unlikely that the applicant would be employed in the future.

In light of these factors the Court determined that the sum of $225,000 be paid to the applicant from the deceased’s Estate. The Court also made an order that the legal costs of the applicant be paid from the deceased’s Estate, which totalled approximately $110,000.

If you have been left out of a Will, you need to speak the expert lawyers at The Sydney Wills Lawyers, on making a family provision claim. We specialise Wills and Estate Law and pride ourselves on our open and honest communication with client’s. Graeme Heckenberg’s Offices are located in the centre of Sydney close to all transport links.

- See more at: www.sydneywillslawyer.com.au


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