We are often asked about making claims on an estate. Here are some of the frequently asked questions:
I have been estranged from my son for years, can I leave him out of my Will? Yes. You have the freedom to put what you want in your Will. You can select which beneficiaries are to receive assets from your Will and you can choose to leave people out. However, be aware that your son is an ‘eligible person’ to contest your Will. As family provision claims are made after you die, you will not be around to explain your reasoning to the court. It is useful to have the reasons for your exclusion recorded in writing for the court to look at and take into account when considering the application. Ideally, the reasons should be stored with your Will.
If I leave my ‘black sheep of the family’ daughter a token amount or $10 in my Will, can she still contest it? Yes. It is a common misunderstanding that if you leave a small sum of money to a wayward child (or any eligible person) this will be enough to prevent them from making a claim against your estate. It may have the opposite effect and provoke anger in the person to such an extent that they file a claim for family provision when perhaps a carefully considered amount of money or percentage of your estate, which could be considered reasonable in the circumstance, would make them think carefully before contesting.
Can my step-child contest my will if no provision is made for them? In NSW, step-children are not considered in the same way as biological children in the laws of Wills and Estates and are not automatically classed as an eligible person to make a family provisions claim against your estate. Step-children need to take a slightly different legal path to access the estate of a deceased step-parent. A step-child may fall under the definition of being an eligible person if they had been at any particular time, wholly or partly dependent upon the deceased person and at that particular time (or any other time) a member of the household of which the deceased person was a member.
If the step-child can satisfy the court that they are an eligible person to make a claim, they then need to satisfy the court that there were reasons for making such an application for provision from the estate.