04 Apr FEELING LEFT OUT?
Should you be included in a Will?
Many people who feel they should have been included in Wills are disappointed when they find that their hopes and dreams have been shattered because the anticipated windfall did not arrive.
The applicable legislation has been engineered to ensure that a Deceased person did not neglect their obligations to people who in the ordinary course of life would be dependent upon them.
The Succession Act has defined the categories of people who may make a claim on the Deceased’s Estate. You will often hear disgruntled people saying they are going to make a claim, on “Uncle Bob’s estate” but the reality is that very few people are in a position where they can make a claim.
In general, people who can claim are wives and ex-wives, de facto partners and children, they form effectively the first and most successful categories of claimants. There are other categories which include grandchildren who have been part of the household or have been dependent on the Deceased, but the courts clearly regard those categories much less favourably.
In recent years this has been a fertile field for lawyers and there have been multiple claims in the equity division for people who felt that they had been left out. Suffice to say, that in some respects many claims were regarded as “ambulance chasing” by lawyers.
The Courts in their own way have severely curtailed claims in both interpretations of the relationships and in the amounts awarded. The number of claims has dropped by about 15% -20% over the last few years. The reason for this is the Courts are more keenly aware of community standards when dealing the resources of the Deceased when that exercise means changing the terms of the Deceased person’s Will.
There has been in the last two years a dramatic shift away from what could be called the benevolent attitude of the Courts, to an attitude where claimants must really show some close connection with the Deceased and most importantly a moral obligation of the Deceased to the claimant.
Claimants who have abandoned families, led dissolute lives and turned up after the Deceased has died claiming that they were wrongly dealt with and should have been looked after are now becoming disappointed claimants.
The Courts generally seek to find a real connection between the claimant and the Deceased. If you do not fall into the first categories of husband, wives, ex-husbands and ex-wives and children you may well struggle to meet the definition of eligible person.
At Medcalf Grant we take the view that an early consultation which is rigorous in its forensic examination of the relationships, funds and activities, of all the parties is the best way to deal with these matters. Some firms take the view that they will lodge a claim in the hope of obtaining a settlement.
As claimants will be liable for legal costs in the range of $30,000 to $40,000 by the time they reach mediation, they need to have a very clear indication that they will be successful!
Before proceedings are commenced we ensure that we advise our client on the prospects of success and give them an educated idea of what sort of adjustment might be made to the Will.
Paul Tocchini and Nicola Jackson have between them years of experience in these matters and in Paul’s case over 30 years. We are happy to take on these matters upon the basis that we will give you our best assessment of your prospects of success and the peace of mind that your matter will be managed with professionalism and confidence. Please contact Paul or Nicola on 9976 0231.
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