A Will, as most people know, is a document prepared to express the wishes of a person upon their death, including most frequently, how the deceased’s estate is to be distributed.
The Will is obviously an important document and for this reason, there are a number of formal requirements mandated to the effective execution of a Will.
The NSW Supreme Court holds the power to grant Probate over a Will. A grant of Probate means that a Will has been certified by the court as being an effective expression of the deceased’s intention and that the deceased’s assets can be distributed in accordance with the Will.
Wills are however open to challenge on two main bases.
Firstly, the grant of Probate over a Will can be challenged. This is appropriate where it is asserted that the Will does not reflect the true intention of the deceased. That situation arises if the Will was said to have been executed under duress, through fraud or whilst the deceased was suffering an incapacity.
Secondly, the effect of a Will can be challenged under what has become known as a Family Provisions Claim (hereafter ‘FPC’). A FPC does not affect the grant of Probate and is often made after Probate is granted. It is not a claim against the intention of the deceased but rather a recognition by the law that there is an expectation on people to make adequate provision for their relatives when they pass away.
In FPCs, courts are not really concerned with what appears to be a fair or predictable distribution of an estate, but rather what the claimant needs for the maintenance and advancement of their life. Where a claimant is plagued by illness or disability which increase their need, their claim will be stronger.
For the reasons above, it is important that a Will is well drafted to ensure that it is effective. If you have concerns about the way a Will was drafted or executed, or the way an estate is to distributed, then contact us at Everingham Solomons because Helping You is Our Business.
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