Q&A On Carer’s Rights In A Will:-

Question

My grandmother had a carer living upstairs who took care of her in the last five years of her life. The carer is saying that granny always said that she would be able to remain living in the house when my grandmother died.

There is nothing in the Will or any reference to this arrangement and no mention of the carer at all. The carer is contesting the Will. Does she have a claim on granny’s estate, I’m at my wits end and don’t know what I should do?

Answer:-

A person is entitled to make a Will leaving their property to any person or charity they wish. However, where a deceased person has made a promise to someone prior to their death and that promise is not reflected in their Will that person may have a claim on the Estate.

If your grandmother promised her carer that she would be able to remain living in the house after she died and the carer cared for your granny on this basis, then your grandmother may have an obligation to fulfil this promise at law. Where the carer has suffered a detriment as a result of meeting her side of the bargain then the Court will enforce this promise against your grandmothers Estate.

The carer will need to provide evidence in Court that this promise was made by your grandmother. This evidence could be from independent witnesses who your gran told of her promise, or who overheard conversations between your grandmother and her carer that mentioned this promise. 

The Executor of your gran’s Estate may produce evidence showing that she had made no promise to the carer. This evidence could be gleaned from notes made by her solicitor when she made her Will as well as independent witnesses who discussed her wishes with her when she was alive.

If the Court decides, based on the evidence, that your grandmother had not made this promise to her carer, the carer may still be able to make a claim under the Family Provision Act. To make a successful claim under this Act the carer would need to prove that she is an eligible person under the Act. Eligible persons include the following groups of people:

• The wife or husband of the deceased including de facto partners and life partners;
• A child of the deceased, or a child of a domestic relationship with the deceased;
• A former wife or husband of the deceased;
• A person who was, at any time, wholly or partly dependent upon the deceased limited to a   grandchild of the deceased person or a member of a household in which the deceased person was a member.

If your gran’s carer proves that she is an eligible person then she must show the Court that there is some reason for her to receive a financial benefit from the Estate. This is based on the relationship with the deceased and what the Court calls a “moral obligation” to provide for an eligible person. If the Court decides that your grandmother had a moral obligation to provide for her carer and the carer was financially dependent upon your granny then the Court may alter your grandmother’s Will to provide financial assistance to the carer.

Defending a contested Will such as the example above involves complex questions of law. 

Graeme Heckenberg is an expert litigation lawyer and will be able to guide you in the process and represent your case in the Supreme Court close to his Sydney city office. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice in a Will dispute or Estate matter, call The Northern Beaches Lawyer today for an appointment close to home. 

Phone 8231 6501 or 0414 554 107 City Experience by the Beach.

Q&A – Wills And Second Families:-

Question:-

My stepfather left my mother and married much younger women. When he died he left all his “worldly goods” to his new wife and nothing to my mother, my siblings or myself. Do any of us have a claim on his estate? Are we able to contest my stepfather’s Will?

Answer:-

In New South Wales if you have not been provided for in a Will or not adequately provided for in a Will it is possible to challenge the Will under the Family Provision Act 1982.

However, only certain classes of people are defined as “eligible persons” under this Act. These classes include:

• The wife or husband of the deceased person at the time of their death including de facto partners and life partners;

• A child of the deceased, or a child of a domestic relationship with the deceased;

• A former wife or husband of the deceased;

• A person who was, at any time, wholly or partly dependent upon the deceased limited to a grandchild of the deceased or a member of a household in which the deceased was a member.

Your mother as a former wife of your stepfather would be considered an eligible person under the Act. However, as your mother and stepfather were estranged it will be necessary for your mother to show that there was some level of contact between her and your stepfather that would give rise to what the Court calls a “moral obligation of your stepfather to provide for the maintenance, education and advancement of your mother.

Your mother will need to show the Court that provision should be made for her from your stepfather’s estate. When deciding whether to provide for your mother the Court will consider the size of your stepfather’s estate, any competing claims on the estate as well as her financial and medical situation.

You and your siblings will not be considered an eligible person under the Act unless you can show the Court that you formed part of the household of your stepfather and had a financial dependency on your stepfather. Financial dependency includes things like paying for your education, payment of your living expenses and other monetary assistance. If your stepfather provided financial assistance to you and your siblings then he may have what the Court calls a “moral obligation” to provide for your maintenance, education and advancement in life.

If you and your siblings can show that you are eligible persons and that your stepfather had a moral obligation to provide for you then the Court will review your financial situations and, if you can establish a financial need, alter the Will of your stepfather to provide this financial assistance to you and your siblings.

Making a claim under the Family Provision Act is subject to strict time limits. 

Graeme Heckenberg is an expert litigation lawyer and will be able to guide you in the process and represent your case in the Supreme Court close to his Sydney city office. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice in a Will dispute or Estate matter, call The Northern Beaches Lawyer today for an appointment close to home. 

Phone 8231 6501 or 0414 554 107 City Experience by the Beach.