Most people have hundreds of questions regarding will contests. When a person passes away, their will is used by the State to distribute their assets accordingly. The will basically provides directions for the state on how to distribute different assets and property owned by the deceased. In most cases, the deceased will leave their property to their siblings, spouses, or children. However, in certain situations where the deceased leaves a will in favour of someone else, the court gives an option for the first family, especially dependent members of the household, to claim their right.
Who Can Contest the Will?
First of all, you need to understand the basics of contesting a will in NSW. According to the law, the following individuals can file for a contest:
- Wife or husband of the deceased;
- Child of the deceased;
- Former husband or wife of the deceased;
- Any person who was wholly or partially dependent upon the deceased at a particular time;
- Grandchild of the deceased person.
If you do not fall in any of the prescribed categories, you cannot bring about an action against the will of the deceased.
The Determination of Moral Obligation
One of the more sensitive issues that you need to understand is the determination of moral obligation. If you are a life partner or spouse of the deceased, moral obligation will be automatically assumed. This assumption is also applicable for children, grandchildren, and adopted children.
However, you must show to the court that some sort of contact was maintained between you and the deceased individual. But, if you were estranged from your family for any reason and were unable to maintain contact, it doesn’t mean that you can’t file a claim under the Family Provisions Act. The main aim is to prove to the Court that you have a competing claim against the size of the estate. You must also depict your needs by highlighting your current financial and medical condition.
The Court takes several factors into account when determining the needs of an individual. Common factors such as maintenance, education, and advancement are considered by the government when determining the moral obligation. Similarly, your lawyer will state other factors, such as medical requirements, which may also play a role in the final decision made by the courts.
Establishing dependency is essential before the court gives its final verdict. In most cases, if a party is unable to prove that they are absolutely reliant on the financial boost provided by the will, the court will not amend the will at all. Even if you win the case, the courts will consider the extent to which the will can be amended.
According to the nature of the law itself, the courts generally avoid amending the will as much as they can. Therefore, you will need an experienced lawyer by your side to help you get a favourable outcome from the case. Almost every lawyer that handles such cases features a “no win, no fee” policy.