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//Can a Will be challenged?

Can a Will be challenged?

Unsure if a Will has been properly administered? Under NSW law, this can be challenged to ensure the intentions behind a Will have been fulfilled.

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What if an Executor refuses to comply with the instructions contained within a Will? In NSW, this can be grounds to contest the estate.

There are legislative obligations that allow a Will to be challenged. in NSW, this is outlined by the 2006 Succession Act. If an Executor does not comply with the way a Will states an estate should be divided, his or her actions can be contested.

A recent case shows how a Will can be contested and even altered to fit the purpose behind the document.

Executor does not carry out Will’s demands

Since the the death of the deceased, the Plaintiff had not received any funds.

A case brought before the NSW Supreme Court highlights the importance of contesting a Will, if the Executor has not followed through with the contents. The hearing was between two brothers, one of which (the Plaintiff) contested the way the other (the Defendant) had administered their deceased mother’s Will.

According to the Will, once all debts and funeral expenses had been paid, some money was to be directed to the Plaintiff to ensure he was adequately provided for. According to court documents, the Will instructed the executor to “set aside sufficient funds out of my estate in order to pay a weekly benefit payment to my son [the Plaintiff] in the sum of two hundred and fifty dollars ($250.00) as long as he lives.”

However, since the deceased’s passing, the Plaintiff had not received any such funds. At the time of the hearing, approximately 54 weeks had passed, resulting in a debt of $13,500 for the Defendant to be taken from the deceased’s estate.

The Court decided that the Plaintiff would not receive the weekly payments. Instead, the Defendant was ordered to make a provision of $800,00 from the deceased’s estate for the Plaintiff. The Judge broke this amount down as follows:

$550,000 to $600,000 for a one-bedroom apartment.
$30,000 for moving costs and stamp duty tax.
$20,000 in order to purchase furniture and whitegoods.
$150,000 to $200,000 for any other needs that may arise in his lifetime.
This was based on the provisions in the Will being unable to sufficiently support the Plaintiff as the deceased intended. As the family members were originally living together, the Plaintiff needs to now purchase his own place due to the breakdown of the relationship with his brother.

The Court awarded the Plaintiff a lump sum of $800,000.The Court recently awarded a lump sum of $800,000.
The Court noted the significance of the proceedings commencing within 12 months of the date of the death of the deceased, as outlined by NSW law. This serves as a reminder to bring any issues to lawyers as soon as possible, to ensure the case commences within this timeframe.

For advice on the best way to contest a Will that has not been appropriately administered, contact the lawyers at PK Simpson.

By | 2018-03-14T09:20:00+00:00 February 15th, 2016|PK Simpson Blog|Comments Off on Can a Will be challenged?

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