Szabo & Associates News & Updates

Background

Before passing away, has a deceased family member transferred property to others leaving insufficient assets to meet a claim from yourself?

Background

Most people will know that a Will is a declaration made by a person during their lifetime expressing their intentions for the disposal of their property after death. The basis of modern law (the law of succession) is the historical British statute the Wills Act 1837. As for capacity to make a Will (testamentary capacity) section 7 states any person of full age and sound mind may make a valid Will provided it is made in the proper form.

Background

In New South Wales, ‘eligible persons’, such as the children of a deceased, may be able to contest a Will by a family provision claim under the Succession Act (2006). Similar provisions apply in other Australian states and indeed other common law jurisdictions. From England comes an interesting precedent established by the UK’s highest court especially as it appears to contrast in some respects with the trend in Australian courts. Challenges to charitable bequests have not just become more common but also the principle of testamentary freedom, the right to leave an estate according to the deceased’s wishes, has itself become more challenged. For example, a report by the Queensland University of Technology found that challenges to charitable bequests, by a deceased’s family members, have become more common as indeed they have in the UK. The report, Family Provision Applications and Bequests to Charity commented: ‘Courts are vigorous in upholding proper family provision as against charitable bequests, portraying the family provision as based on moral obligation. The original purpose of family provision law was to reinforce the proper maintenance and support of a testator’s spouse and children. Testamentary freedom is now seriously challenged’.

The prospect of raising legal action to contest what someone has written in their Will can be a very daunting one. You will likely be concerned with what others think of you, and how they may react to the news that the last wishes of someone that was dear to you all, are being challenged. This is entirely understandable, and most people would feel the same way. There are very strict rules about the circumstances where the terms of someone's will can be contested, and it is important to understand what these are before taking any concrete steps to do so.

A successful Queensland business woman has become embroiled in a bitter inheritance dispute with her sister, reports the Courier Mail.