Left Out Of A Will, Want To Put It Right?
Where’s there’s a Will, there’s sometimes a Way – to upturn it.
Karl Lagerfield died last month. According to Le Figaro, his cat Choupette was to inherit a good bit of his estimated $300 million fortune. She’s no retiring feline, this one, she has her own Instagram account. Here is an image of Choupette with the sort of headgear (chapeau you know) you might wear when you are about to enrich the legal profession with much needed litigation by challenging a Will.
Emboldened, who might not be tempted to give the kids a nice farewell surprise, and leave their whole estate to the local cat’s home, or even the family cat?
Naturally, the courts respect your ability to leave your estate to whoever you wish. However, in NSW, the Supreme Court can vary a Will by various means.
Many people when they first think of bad Wills call to mind invalid Wills (scribbled on a beer coaster, not signed, not witnessed) or by a Willmaker without capacity (with dementia) or under undue influence.
Valid Wills that make Inadequate Provision for Family
However, a common claim not well understood is a claim for “Family Provision” where the Willmaker did not make “adequate provision”.
An estate can be subject to a claim for “family provision” by a person in the category of “eligible” family members, including a married or de facto spouse, or child, or who were a dependant living in the deceased’s household.
Check here to see if you are eligible: http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/sa2006138/s57.html
The classic case of family provision is when a widow claims that she has been left with insufficient funds for her to have a roof over her head, and to cover her reasonable expenses of living. In many cases, the courts will order that part of the estate be applied to buy a house for the widow, and to pay her house and living expenses. It also common to see claims by children that have been left out or that have been included in a Will but have special needs for extra provision because of disability.
Family Provision Process
If you do have a family provision claim, your first stop will be a lawyer’s office. If you have a claim, your lawyer will send a letter of demand, and if it is not resolved, you will file a Summons in the Supreme Court. You must do so within 12 months of the date of death.
Your Summons will be supported by your Affidavit, a sworn statement setting out your financial situation, that of your spouse, your contributions to the deceased, and how the deceased looked after you.
The court considers a wide range of factors, including the size of the estate, the financial capacity of the claimants and beneficiaries, before making a family provision order.
The resulting court cases can be prolonged and expensive. It goes without saying the legal costs can deplete the estate.
Don’t leave your Will too late – Capacity
Apart from a claim for family provision, Wills can be disputed if the Willmaker lacked ‘testamentary capacity” to make the Will – that is, if the deceased did not understand that they were making a Will, their assets and who should be considered when making the will. The prevalence of mental illness, in particular dementia in older people, indicates that you should do your Will while you are young and healthy.
Get Advice Early – A stitch in time saves nine (cats’) lives
What to do?
First, you should review your Will now. Tell your solicitor about those that have and do rely on you for support, and what you have provided for them in the past, and what you propose for the future.
Second, if you expect to benefit from someone’s estate, and are to be left out, or have been left out of a Will, tell your lawyer, and get advice.
Finally, do it properly. You don’t want to leave a mess and your relatives fighting like cats and dogs in the great big zoo for the legal profession and their clients known as the Supreme Court.
Source: Written by Peter McNamara, Partner at Clark McNamara Lawyers, Sydney, April 2019.
If you do lose capacity to make a Will, then you could have a “statutory Will” imposed on you, also under the NSW Succession Act.
The Supreme Court can authorises the creation, alteration or revocation of a Will on behalf of a person who lacks testamentary capacity.
The court looks at whether “the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity”. A statutory Will might be made for someone that has lost capacity or for someone that never had capacity.