In reality, NSW law gives people with a close personal relationship who have been unfairly excluded from the estate a year to challenge it.
Spouses, former spouses, children and de facto partners may all be eligible, with factors like the nature of the relationship and its duration taken into account.
Obligations owed by the deceased to the person making the application, provisions made for them by the deceased in life, their age and financial resources, and the nature and value of the estate can all be taken into consideration.
In special circumstances the Court can also accept applications more than a year after the loved ones death.
A good example was a recent case involving an American woman who married an Australian businessman in 1988.
After struggling to settle into life in Australia she moved back home and in 1994 they divorced.
Both moved on with their lives, but they retained a strong affection for each other and the businessman would visit his former wife when in America.
When the man was diagnosed with terminal cancer in 2011, he told his former wife that he would ensure she received some financial support, however this wasn’t included in his will.
Despite the short length of their marriage, the time between their divorce and his death, and the lack of regular contact between them, the Court found the pair had never completely moved on from the relationship.
The Court awarded her $200,000 from her ex-husband’s substantial estate, which included property, trust funds, and business assets.
And while she was five months late with her application to challenge his will, the Court accepted that she had not discovered the possibility of making the claim until almost a year after her former husband’s death.
If you believe you have been unfairly excluded from a will, consult a lawyer immediately and they will be able to determine whether you may have the right to challenge it.
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