Can a Court change my Will after I have died?

Q.Can a Court change my Will after I have died?

A. In a way, yes. It is complicated. However, the following may assist in understanding this area of the law of NSW (Succession Act):

1. The applicant must be an eligible person– these include children, spouses and ex-spouses (including de facto spouses.)
2. Your Will did not make adequate provision for the eligible person’s proper maintenance, education or advancement in life.
3. Adequacy is not just whether the eligible person has enough to survive or to live comfortably without provision from your estate but also for unforeseen contingencies.
4. To decide whether adequate provision was made in your Will, how the eligible person lived and might reasonably have expected to live in the future are considered.
5. The eligible person’s financial position, the size and nature of your estate, the totality of the relationship between the eligible person and you and the relationship between you and others who have legitimate claims on your estate are considered.
6. If the Court finds you had made no adequate provision for the eligible person, the Court then has to decide whether to order provision from your estate for the eligible person. The Court considers:
   1. The relations between you and eligible person.
   2. Any obligations or responsibilities owed by you to the eligible person and other beneficiaries.
   3. The nature and extent of your estate.
   4. The financial resources (including earning capacity) and financial needs, both present and future, of the eligible person and beneficiaries of your estate.
   5. The financial circumstances of a eligible person’s spouse/de facto spouse.
   6. Any physical, intellectual or mental disability of the eligible person and any beneficiary
   7. The age of the eligible person.
   8. Any contribution (whether financial or otherwise) by the eligible person to the acquisition, conservation and improvement of your estate or to your welfare.
   9. Any provision you made to the eligible person in your lifetime or made from your estate.
   10. Any evidence of your testamentary intentions including evidence of statements made by you.
   11. If the eligible person was being maintained, either wholly or partly, by you before your death.
   12. Whether any other person is liable to support the eligible person.
   13. The character and conduct of eligible person.
   14. The conduct of the eligible person.
   15. Any relevant Aboriginal or Torres Strait Islander customary law.
   16. any other matter the Court considers relevant.

Case Example

An adult son applied for provision from his mother’s estate (his father had died some years previously leaving his estate to his wife). The adult son was working and had a partner, who was also working. The son and his partner owned a home which was worth more than the total value of the mother’s estate.

The Court found that the son’s failure to visit his mother in hospital other than on one occasion and his failure to contact her during her stay at his sister’s home, when he knew his mother was dying, was callous. The Court found the son withheld love and support from the deceased in her last weeks and did so merely because he did not wish to have contact with his sister.

The Court found that the son made modest financial contributions and assistance provided to his mother at times over the years but this did not justify the conclusion that the deceased made inadequate provision for her son in her Will, taking into account the absence of a close relationship between them, the son’s conduct in the last weeks of the deceased’s life, the son’s financial resources, the size of the deceased’s estate and the interests of two other children of the deceased. The mother expressed her testamentary wish shortly before she died by making provision in her Will of only $1,000 for her son. There was no evidence to suggest that the deceased was suffering from any mental incapacity when she made her last will, or that she was acting under the influence of any other person when she made her Will.

If you need advice on your Will or making a new Will, contact Kathy at Pittwater Family Lawyers by sending her an email at: pittwaterfamilylawyers@gmail.com or telephone her at: (02) 9918 6565 or 0418 285307.