There’s usually a relative, sometimes one who is hurt and sad because he or she has been left out of the Will or otherwise treated unfairly.

The hurt can be undone. Under the Succession Act 2006 (NSW), the Supreme Court can rewrite an unfair Will on the application of wives, husbands, de factos, children, former wives or husbands, dependents, grandchildren or members of the household of, or those living in a close personal relationship with the deceased.

An applicant for relief must show a need by reference to his or her age, health, financial situation, earning capacity and the like.  An applicant must be  “deserving”  that is to say to have had such a relationship with the deceased that it might be expected that he or she would benefit under the Will. The applicant must show that the relief sought is reasonable given the size of the estate, and weighing the claims of the applicant against the claims of other people for whom the deceased person was under a moral obligation to make provision.

There is a time limit on applications.  The proceedings must be commenced not later than 12 months after the date of death.  Time can be extended on sufficient cause being shown.

A Will may be unfair because the deceased did not have sufficient mental capacity at the time that he or she made it. In this case, the Court can strike  down the Will, which will revive the most recent  former Will made by the deceased at a time that he or she had sufficient capacity  The test of capacity centres on the deceased’s understanding of what constitutes his or her estate and who is entitled to benefit from such estate and why.

A Will may be unfair because it was made under undue influence. There are all sorts of unseemly relationships, which involve undue influence by one person over another. The Court has power to strike down a Will which is the product of undue influence.

Where there’s a Will there’s usually also a lawyer. At Everingham Solomons we have lawyers able to give expert advice in relation to claims arising out of unfair Wills and your first consultation with us will be free and absolutely confidential because Helping You is Our Business.

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