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Legislation gives the right to a person left out of a will or given an inadequate share to challenge that will.
The classes of person (for example, including spouse, child, adopted child) who may apply within strict time limits are all part of the provisions in the legislation. Such applications are stressful to the claimant, the executor resisting or having to deal with the claim and other beneficiaries. Legal advice is essential at an early stage to determine whether a claim is possible and has prospects.
You should think about the following issues:
1. Your relationship to the deceased, your means and needs.
2. Whether you were in a connubial/de facto relationship with the deceased.
3. Whether you were partially or wholly dependant on the deceased.
4. Contributions, whether direct or indirect you may have made to the building up of the deceasedís estate, including carrying on of a business,
5. Special needs arising as a result of age, state of health of a claimant.
6. The means and needs of a claimant
7. Whether or not a normal relationship existed between the testator and the claimant.
8. Conduct of a claimant, including conduct after the death of a testator.
9. Issues that relate to dishonesty
10. Whether the claimant acted contrary to wishes of the testator.
11. Whether the claimantís personal behavior was such as to earn the disapproval of the testator so that the testator felt justified in rejecting or minimizing an entitlement.
The other side of the legislation is how to draft a will in order to avoid a claim, bearing in mind that the costs of defending a claim and often the costs of the claimant come out of the estate and so reduce the amount available for distribution to all beneficiaries.
The decision on who should be the executor may also be an important decision if one feels there is a real possibility of such a claim. Call us today on 6257 9995 for advice about your circumstances.