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Freezing Order

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Freezing Order! – My Mother’s Will is being disputed by a brother that was not very close to the family. As a result of this a ‘Freezing Order’ has been obtained in respect of my mothers estate. What does this mean and what are the implications for me?

In New South Wales it is possible to dispute a Will by making a family provision claim under the Succession Act (“the Act”). It appears that your Mother’s brother (your uncle) is making a family provision claim and while the claim is being considered your uncle has obtained a ‘Freezing Order”.

A Freezing Order is an order made by the Court restraining any distribution of your Mother’s Estate until the family provision application by your uncle has been determined.

What this means for you is that you will not receive any of your inheritance under your Mother’s Will until the family provision claim by your uncle has been determined.

When determining your uncle’s family provision claim the Court will firstly determine whether he is an ‘eligible person’ under the Act as only eligible persons are allowed to make a claim. Eligible persons under the Act include:

  • The current or former spouse of the deceased;
  • The current de facto partner of the deceased;
  • A child of the deceased;
  • A person who was, at any particular time, wholly or partly dependent on the deceased and was either a grandchild of the deceased or a member of the household of which the deceased was a member;
  • A person with whom the deceased person was living in a close personal relationship at the time of the deceased’s death. A close personal relationship is a relationship between two adults who are living together and providing domestic support and personal care.

If the Court determines that your uncle is an eligible person to make a family provision claim the Court will consider the following factors in deciding whether or not to allow the claim:

  • The nature of the relationship between your mother and her brother;
  • Whether your mother had any obligations or responsibilities towards your uncle;
  • The amount of your Mother’s Estate;
  • The financial resources and financial needs of your uncle and anyone with whom he cohabits;
  • Whether your uncle suffers from any physical, intellectual or mental disability;
  • Whether your uncle made any financial or other contribution to your Mother’s estate;
  • Your Mother’s testamentary intentions which can include statements she made about her brother;
  • The character and conduct of your uncle before and after she died including the apparent lack of contact between your Mother and your uncle.

After considering the above factors the Court will decide whether your Mother should have made provision in her Will for her brother’s proper maintenance, education or advancement in life. If your uncle is successful then the amount of your inheritance will decrease to allow for a distribution of the estate to your uncle.

To ensure that your inheritance is protected and the claim vigorously defended you need to seek expert legal advice as soon as possible.

Graeme Heckenberg is an expert Wills and Estate lawyer.

Call today for a an appointment closer to home on 9221 0341

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