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Given that our modern family relationships can become quite complex over time, it is certainly only a very short step from the potential, to the actual situation of court challenge to your Will (if you’ve made one!).

Individuals who are members of step-families, blended families and/or second or third families (including former spouses, children and step-children) of which you’ve been a member during your lifetime – may well have a valid claim on your Estate. One or more of them may decide that they have been inadequately dealt with by any Will you may have had in place or, worse still, that your failure to make a Will has left them subject to the intestacy rules, making it necessary for them to make a claim on your Estate through the Court to get what they consider to be their “fair share”.

The newly revised NSW intestacy rules (part of the Succession Act 2006 (NSW)) make the following “eligible persons” – none of whom fell into that category under the previous intestacy rules:

  • Persons in a domestic relationship with you before your death (and any children of that relationship);
  • Your children from a prior relationship;
  • Your previous spouses (under the so-called “multiple spouse provisions”);
  • Your cousins;

and any of them may make a claim on your Estate, however,

  • In the absence of any “eligible person” (such as those mentioned above) the State government will be entitled to the whole of your Estate.

If you’ve made loans to one or more of your children during your lifetime on the understanding that any sum outstanding would be deducted from their share of your Estate on your death, that creates another potential scenario in which a challenge to the distribution of your Estate may arise – even if you do have a Will in place. Children frequently tend to have “convenient” memories when it comes to loans of this sort (particularly if no formal loan agreement was put in place at the time the loan was made).

Please note that LegalVision is a commercial law firm and cannot assist with these matters.


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