If you’re looking for answers on how to Contest, Challenge or Dispute a Will, then you’ve come to the right place. Graeme Heckenberg Principle Lawyer at Northern Beaches Lawyers has been in practice for over 25 years, specialising in Wills and Estates.
There are pros and cons in Challenging a Will, with a need to balance the potential emotional impact on a family with the financial advantages in a successful Will challenge. In relation to financial benefits, it is important to remember that for a Will challenge to be successful, you need to show the Court that you are in financial need.
A recent decision of the New South Wales Supreme Court highlights the pros and cons of Challenging a Will and showing you have a financial need.
In M Raiola and I Raiola In Andreatta v M Raiola [2014] three adult siblings argued over the distribution of their father’s Will. Their father had left his two oldest children (a son and a daughter) out of his Will leaving everything to his youngest son.
The Estate was valued at approximately $500,000 and the Court was required to consider the claims of the eldest son and daughter separately.
In relation to the daughter the Court heard evidence that she and her father had been estranged for over 21 years. The deceased had stated in his Will, that the reason he had not left anything for his daughter was because he had not heard from her in 21 years, she did not know if he was still alive and she had lost all contact with him.
The daughter alleged that the estrangement was the result of physical abuse she suffered at the hands of her father when she was a child. The daughter further submitted that she had reconciled with her father shortly before his death.
To be successful in her claim against her father’s Estate, the daughter needed to show that her father had a moral obligation to provide for her in his Will, as well as showing the Court that she was in financial need.
The Court dismissed her Challenge against the Will, as they were not satisfied that she had established a claim to provision, given her father’s express statements in his Will, the length of the estrangement and the lack of evidence to show her present financial position
After dismissing the daughter’s claim, the Court was required to consider the Challenge to the Will by the deceased’s oldest son. The deceased’s eldest son had maintained a relationship with his father, although it was a difficult relationship as the deceased did not approve of his son’s choice of wife.
The deceased had stated in his Will that he had not left anything to his eldest son, as he had done very well financially and did not need the deceased’s financial assistance. To be successful in his Will Challenge the deceased’s son needed to show the Court that he was in financial need. The son submitted that despite having property holdings and income he was self-employed, his earnings fluctuated and he had large expenses and significant debt arising from his property holdings.
The Court dismissed the Challenge by the deceased’s eldest son, finding that he had been substantially successful in this business affairs and had no need for provision from the deceased’s Estate.
Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide you a on the pros and cons of Challenging, Disputing or Contesting a Will.
Call today for a an appointment closer to home on 9221 0341
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