Challenge The Will

Have you been unfairly excluded from the will? Did you not receive adequate support in your will? So, can we challenge the will?

The testament and inheritance law is based on the principle of freedom of will, which means that individuals can distribute their inheritance to anyone according to their own wishes. But a will is not a mere formality. The law allows those who are unfairly excluded from the will or whose provisions are insufficient to challenge the will in court. This area of law is known as the “family clause”.

The conditions for successful family custody take precedence over the principle of freedom of will, allowing the court to change the terms of the will to correct the unfair provisions on the previous distribution of property, money and/or other assets owned by the estate. These “family upbringing orders” will be regarded as annexes to the will.

However, the court generally does not want to overturn the freedom of the deceased’s will. Only when the applicant is qualified according to the relevant standards, can it have the opportunity to raise an objection to the will.

Who can submit a family allowance application?

Family benefit applications are only available to eligible persons. In New South Wales, the succession law defines the categories of persons eligible to make claims. This includes:

The spouse of the deceased;

The deceased’s de facto partner;

Children of the deceased;

Former spouse of the deceased;

The grandson of the deceased;

Family members of the deceased; and

A person who has a close personal relationship with the deceased.

When does the court issue a family maintenance order?

If the applicant has determined that he is qualified to object to the will according to the Nursing Care Act, and the court finds that the applicant has not provided adequate protection for his “proper maintenance, education or life progress”, it can issue a nursing care order. This means that if the court believes that in such a case, the deceased should provide more terms to the applicant than the applicant, the court can make an order.

Therefore, no objection can be raised because the will is unfair. The Family Regulations Act does not seek to create equality or equity among beneficiaries, nor does it seek to reward or punish a person for their actions. Only when the will of the deceased cannot meet the needs of the people the deceased may need, can the court support the challenge of the will and override the freedom of the deceased’s will.

What does the court consider when making a family maintenance order?

The inheritance law stipulates that the court should consider the following factors when deciding whether to issue a family maintenance order:

The nature of the relationship between the applicant and the deceased;

The financial resources and needs of the applicant, the beneficiary and other persons who request family support;

The nature of any obligation or liability undertaken by the deceased to any other person who has made two demands, namely, the applicant, the beneficiary and the nanny;

The applicant’s age and health status;

The value of the heritage;

All contributions made by the applicant to the estate or welfare of the deceased;

The applicant’s character and behavior;

Whether there are competitive claims against the deceased’s heritage,

Whether the deceased provided for the applicant before his death;

Whether any other person has the responsibility to support the applicant;

Whether the deceased provided any protection for the applicant before his death,

All evidences of the deceased’s will intention; and

Other related matters.

How to make a claim for family provident fund?

In order to apply for a family grant, the applicant must submit a subpoena and affidavit of support to the Supreme Court of New South Wales. If you think you are qualified to file a claim, you’d better take legal advice. The following matters must be noted when making a claim:

Probate or administration

The applicant may raise an objection to the will after the grant of probate, but it is not necessary to wait for the issuance of probate or letters of administration before the commencement of litigation. However, the court cannot make a final decision on a family support claim until probate or letters of administration have been granted.

Validity of wills

Family support requirements generally assume that the will is a valid will, but the applicant can question the validity of the will for various reasons. This includes questioning the validity of the will. If the validity of the will is questioned, the court can only consider the family support requirements after assessing its validity and terms.

time limit

The inheritance law stipulates the time limit for the applicant to raise objections in his will to apply for family maintenance within 12 months of the death of the deceased. The court only allows the application within the specified time when there are sufficient reasons. The claim settlement period can be extended under the following circumstances:

The applicant is unaware of the death of the deceased;

The applicant is unaware of his legal right to make a claim.

The legal opinions received by the applicant are insufficient or insufficient; or

The applicant is not aware of the provisions made for him under the will.

Can you apply for family allowance without a will?

If the deceased dies without a will, that is, without a will, their estate will be distributed according to the rule of intestacy. In essence, all their property will be transferred to their nearest relatives. The intestate death does not hinder the implementation of the Family Security Law. As long as the applicant is a qualified person who meets the relevant standards, he or she can still challenge the distribution of inheritance under the family security.

Who defends the family benefit claim?

Family support claims will affect executors and beneficiaries. But the responsibility of defending the family maintenance claim lies with the executor. In this case, the executor must negotiate with the family support application and/or the applicant in court to reach a compromise.

Who has to pay legal fees?

In the compensation for family support, the expenses for defending the will are generally paid by the estate. If the applicant successfully applies, the estate usually pays the fees of the applicant and the executor. But this is not always the case. The court will reserve its discretion and make any order for court costs as it thinks fit, depending on the specific circumstances of the case.

What type of family support order will the court issue?

If the will is successfully disputed, the family maintenance order that the court can issue includes:

An order specifying the payment of a certain amount of goods(which can be paid in installments or periodic installments);

An order granting the applicant an interest in property;

An order to transfer specific property to the applicant; or

An order to retain specific property on trust for the applicant.