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Family Law

Appealing a will

By December 31, 2017October 21st, 2021No Comments

If you need help with your will, or appealing a will, call Alliance Legal on 02 6223 2400.

Family provision claim on deceased estate fails on appeal

If you have been left out of the will by your ex-spouse, can you still claim? A recent appeal case says ‘No!’

Justice Brereton had handed down an earlier decision in January 2017 which awarded an ex-wife $750,000 from a deceased estate, despite the fact that the deceased had been separated from his wife for a quarter of a century and their property settlement had already been finalised in 1992.

The man’s daughter has now successfully appealed this decision and will inherit the entire deceased estate.

In arriving at their conclusion that the primary judge had erred, the Court of Appeal found that it wasn’t appropriate to ask whether the deceased’s entire estate should pass to his daughter. They ruled that a number of other factors were much more important including:

  • the fact that the marriage had lasted less than 19 months;
  • the fact the marriage had ended 25 years ago;
  • that the parties had done their financial settlement in court in 1992;
  • that the ex-wife’s financial circumstances at the time of the hearing were unconnected to her relationship with the deceased, and instead were “largely attributable to injuries sustained in a series of motor vehicle accidents and her relentless persecution of the deceased over a number of years.

The ex-wife was ordered to pay the legal fees of the case.

So how to protect yourself?

  • After separation, change your Will!
  • Get divorced, as a 12 month deadline to file a property claim starts once you are divorced;
  • Sort out your financial affairs upon separation, to give a clean break;
  • Don’t forget things like insurance beneficiaries or binding death nominations for your super;
  • See a lawyer after separation

Original article at Lexology.

Do you need assistance with a family law matter or a new will? Please contact us or call on (02) 6223 2400.

Please note our blogs are not legal advice. 

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