In New South Wales you have the right to make a will in whatever terms you want. It’s an important right and most people would agree that the court should not be able to change it. But, an “eligible person” can make a claim on your Estate after you die. An eligible person is.
a) a spouse;
b) a de facto partner;
c) a child;
d) a former spouse;
e) a person who was wholly or partly dependant on the deceased and who is a grandchild or was a member of the household, of the deceased;
f) a person with whom the deceased was living in a close personal relationship.
If a claim is made by an eligible person the court must be satisfied that adequate provision for the proper maintenance, education, and advancement in life of the eligible person has not been made by the will. The court can make an order that the eligible person receives part of the estate.
So what does a court consider when making such an order?
The court can decide whether to make an order and the amount of that order. The court cannot award more than an “adequate provision”. It has been said in a number of cases that the court can only make an order “which a just and wise will maker would of thought it his or her morale duty to make”. The freedom to make a will in any terms you want is changed by the operation of the law so that will makers are obliged to make provision for those eligible persons for whom according to community standards they are expected to provide. It has also been said that the court takes into account what fair and reasonable members of the community would expect a will maker to provide for the eligible persons.
As an example, the court has said that the approach to be taken for awarding any further provision to a surviving wife or a de facto partner out of her partner’s or husband’s estate is, that the will maker owes a moral duty to his widow of a long marriage so far as the estate permits, to make provision for her to ensure that she is secure in her accommodation and has an adequate income and a fund for modest luxuries and contingencies.
The approach by the court for other classes of eligible persons look at different factors. I will write about that in the next article.
Care must be taken in drafting your will to avoid your estate being involved in expensive legal proceedings after you die.
