| Family Provision Act Claims
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| | Undue Influence & Duress
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| Sometimes when a family member passes
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| | Courts can declare a will to be invalid
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| away some of the deceaseds relatives
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| | in situations where it was made under
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| believe that they have not been
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| | duress or undue influence. In either
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| adequately provided for in the deceaseds
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| | situation, someone attempted to influence
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| will.
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| | the terms of the will. Duress can be
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| These persons are often current or former
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| | physical, psychological or in the form of
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| spouses, de facto spouses, children or
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| | a threat. Actual evidence of duress is
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| step children. Sometimes grandchildren
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| | required.
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| also may make a claim as well as other
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| | Undue influence can arise in
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| persons who have, at some time, been at
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| | circumstances where a relationship exists
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| least partially financially dependant on
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| | between a person making the will and
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| the deceased and a member of the
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| | another person such that the other person
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| deceased's household. Frequently the
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| | was in the position to exert some power
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| deceased is viewed as having had a moral
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| | over the person making the will to make
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| obligation to make some provision for
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| | the will in a certain way. Most often
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| that person on their death.
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| | the person exerting the undue influence
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| In these circumstances it may be possible
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| | is likely to be a family member.
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| to make a claim under the Family
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| | Incapacity
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| Provision Act 1982 (NSW). Proceedings
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| | A will can also be challenged in the
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| for an order under the Family Provision
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| | event that, at the time it was made, the
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| Act must be commenced within 18 months
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| | person making the will lacked the
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| after the death of the deceased person.
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| | necessary legal capacity to make the
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| The court has the power to extend the
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| | will. In effect, this means that the
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| time for commencement of proceedings
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| | person making the will, at the time, did
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| where sufficient cause is shown for the
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| | not understand the nature and effect of a
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| application not having been made within
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| | will they were making, or were unable to
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| the 18 month period.
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| | make rational decisions regarding the
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| In order for a court to alter the
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| | distribution of their property.
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| deceaseds will the court must be
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| | This situation most frequently occurs in
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| satisfied that the deceased failed to
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| | relation to the elderly, people in frail
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| make adequate provision for the proper
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| | health, or those suffering from an
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| maintenance, education and advancement in
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| | illness which affects their mind.
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| life of the person making the
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| | In almost all cases, medical evidence as
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| application. Whether the deceased made
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| | to the person's lack of capacity will be
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| adequate or proper provision depends on
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| | required to establish the incapacity at
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| all the circumstances of the case.
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| | the time the Will was made.
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| For this reason courts consider a wide
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| | Contract to Make a Will
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| range of factors such as: the wealth of
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| | In some situations, people (usually
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| the deceased, the number and needs of
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| | married or de facto couples) may choose
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| other dependents and beneficiaries, the
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| | to enter into a binding contract to make
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| age and capacity of the applicant and the
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| | their wills in a certain way. Usually
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| relationship between the applicant and
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| | both people make a will in accordance
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| the deceased.
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| | with the contract at or about the time
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| Where a court is satisfied that the
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| | the contract is entered into.
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| deceased failed to make adequate and
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| | It sometimes happens that one of those
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| proper provision for someone, the court
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| | persons may make a later will which is
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| then decides what, if any, provision
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| | inconsistent with the contract, often
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| should be made for the applicant. In
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| | without telling the other contracting
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| making this second determination, courts
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| | party about their new will, or perhaps
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| again consider a wide range of factors.
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| | after the death of that person.
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| For instance, if the applicant is a
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| | Where the contract regarding the making
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| person with an intellectual disability
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| | of the wills has been properly drafted
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| the court may consider issues such as the
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| | and is legally enforceable, persons
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| availability of social security benefits
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| | affected by a breach of the contract may
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| and the extent to which the persons
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| | be entitled to make a claim for damages
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| disability inhibits his or her ability to
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| | or other relief from the court.
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| gain employment.
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