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