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Before a person deceases it is important to have proper estate planning strategies implemented and a properly drafted and thorough will should have already been drafted. Succession law is state-based and covers four topic areas; being the law of wills, family provision, intestacy and the administration of estates. Claims under succession law, or as they are commonly referred to as ‘Family Provision Act Claims’, deal with claims for an order for provision to be made out of an estate for a person’s maintenance, education and advancement in life.  Proper legal advice from a Wills and Estates Lawyer may be greatly beneficial to consider your individual circumstances and ensure that your estate is safeguarded from any unwanted claims.

If a spouse or partner has not been adequately provided for in a will then they are generally in a strong position to make a claim against the estate. This is because generally the legal position is that the deceased will have owed an obligation to make proper provision for the spouse. Where there has been a long, harmonious and loyal marriage or relationship and the surviving spouse assisted to build up the estate, then, to the extent that the size of the estate permits, the duty of the testator is to provide: a “secure” home that the spouse may change according to need or whim, an income sufficient for the spouse to live on in reasonable comfort and free from financial worry, and a fund for modest luxuries and unforeseen contingencies. The circumstances affecting the strength of a claim by a surviving spouse include financial dependence (which may in particular affect claims by widowers, or spouses left with the major role of raising children), and, the existence of a marriage with its binding commitment to mutual support and a shared life (although the Act makes no distinction between de facto and de jure spouses). It is highly advisable that you consult a Wills and Estates Lawyer at one of our law firms who can consider your circumstances and may be able to assist you with drafting your will so that your estate is adequately protected from undesired claims.

Children are the next class of persons who may have a claim on the testator’s bounty. There are no separate principles for different categories of children, every application must be determined according to its own circumstances, including age and capacity to support oneself. Therefore, infant children will probably be the next strongest claimants after the surviving spouse. However, depending on all of the circumstances, including the size of the estate and competing claims, proper provision may extend beyond needs in terms of necessities and amenities of life to provide able-bodied children with capital assets or money to buy a house. Other dependants will generally be subject to the competing claims, if any, of the spouse and children. A qualified Wills and Estates attorney may be able to review your situation and minimise any risks of unwanted claims.

If you need further legal advice on your wills and estate planning matter, you may book an appointment with us by telephone on (02) 9233 4048 or send an email to info@navado.com.au. 

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This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.

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