Freedom to dispose of your property how and to whom you wish upon your death is something Australian Law protects.

In the words of Supreme Court Judge, Hallen J. “testamentary disposition is, a prominent feature of the Australian Legal System. Its significance is both practical and symbolic and should not be underestimated.”1

With this freedom, however, is also the ability for the Court to make an order for provision out of an estate in favour of an eligible person, if the court considers adequate provision was not made for that person.

For a person to make a claim they must be an ‘eligible person’. An ‘eligible person’ includes: –
• the wife or husband of the deceased;
• a person who was living in a de facto relationship with the deceased (including same sex couples);
• a child of the deceased (including an adopted child);
• a former wife or husband of the deceased;
• a person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased;
• a person with whom the deceased was living in a close personal relationship at the time of the
deceased person’s death;
If you are an ‘eligible persons’, the Court will consider making an Order if: –
• you were dependent on the deceased;
• if the share you were to receive was not adequate for your maintenance and support;
• if your relationship with the deceased began after the time the deceased made their Will;
• If the Will does not provide enough for the eligible persons who were ex-partners or children from
previous relationships;
• If you believe the Will is grossly unfair;
• If you can prove that the Will maker was not in sound mind when the Will was prepared;
• If you can prove that the Will maker was unduly influenced by one or more of the other beneficiaries of the Will; or,
• If the Will is not clear.

Whether you are an Executor trying to meet your obligations, a family member who believes they were not properly provided for under the terms of a Will, are concerned about a Will being followed, or have concerns about your family’s future – we have experience and knowledge to help.

(1. Goodsell v Wellington [2011] NSWSC 1232, per HallenJ.)

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