Understanding the Power of the Court to Amend Wills

Good morning

Why can a Court amend a Will?

I am often asked if a court can change a will.

By an application to the Supreme Court of NSW, within 12 months of the death of the deceased, by an eligible person who meets the requirements, the court has been granted the power to amend wills under the Family Provision section of the Succession Act 2006. This arose as a means to provide for the adequate maintenance and support of certain family members and dependents, who might otherwise be left without sufficient provision from a deceased person’s estate. This legislative framework has its roots in earlier laws and reflects a long-standing societal recognition of the need to protect vulnerable family members from being inadequately provided for in wills or under intestacy laws.

Historical Context

1. Origins:

• The concept of family provision laws originates from the pioneering New Zealand’s Testator’s Family Maintenance Act 1900 was one of the first of its kind in the world, pioneering the concept of statutory family provision. The success and principles of this legislation influenced similar laws in other jurisdictions, including the law in NSW.

• This was a significant shift from the traditional common law approach where individuals had the freedom to distribute their estate as they saw fit, without any obligation to provide for family members.

2. Introduction in Australia:

• Australian states and territories began adopting similar provisions, recognising the need to balance testamentary freedom with the obligation to support dependents.

• NSW first introduced family provision legislation with the Testator’s Family Maintenance and Guardianship of Infants Act 1916, which was modelled after the NZ law and provided for the court to intervene where a will did not make adequate provision for the proper maintenance and support of the deceased’s family.

Evolution to the Succession Act 2006

1. Review and Consolidation:

• Over the years, various amendments and separate pieces of legislation were introduced to address issues related to family provision claims.

• The need for a comprehensive and updated legislative framework led to the enactment of the Succession Act 2006, which consolidated and updated the laws relating to succession, including family provision.

2. Succession Amendment (Family Provision) Act 2008:

• The Succession Amendment (Family Provision) Act 2008 made further significant changes to the family provision laws in NSW. It aimed to streamline and clarify the process for making family provision claims, ensuring greater consistency and fairness in how these claims were handled.

Objectives and Principles

The Family Provision section of the Succession Act 2006 serves several key objectives:

1.  Adequate Provision: Ensure that eligible family members and dependents receive adequate provision for their proper maintenance, education, or advancement in life.

2. Balancing Interests: Balance the deceased’s testamentary freedom with the needs of dependents, recognizing the deceased’s intentions while also protecting vulnerable family members.

3. Legal Framework: Provide a clear legal framework for making and adjudicating family provision claims, ensuring procedural fairness and consistency in outcomes.

Key Features of the Family Provision Legislation

1. Eligibility: Defines who can make a claim, including spouses, de facto partners, children, and other dependents who were wholly or partly dependent on the deceased.

2. Court’s Discretion: Grants the court discretion to order provision out of the estate based on various factors, such as the claimant’s financial needs, the size of the estate, and the relationship with the deceased.

3. Procedure: Establishes the procedural requirements for making a claim, including time limits, necessary documentation, and the role of mediation.

Conclusion

The Family Provision section of the Succession Act 2006 (NSW) is the result of a historical evolution of laws aimed at ensuring fair and adequate provision for family members and dependents. It represents a balanced approach to succession law, respecting the deceased’s wishes while protecting those who might otherwise be left without sufficient support. The legislation is designed to provide a fair and just mechanism for resolving disputes over the distribution of a deceased person’s estate.

If you or anyone you know requires advice regarding wills or what to do regarding the assets of a deceased person please contact me for the relevant advice. I have been drafting wills and assisting in the process of probate and administration of estates for many years and am available to assist.

Best regards,

Jeffrey

0419 233 670

[email protected]

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Legal Disclaimer: This guide is for informational purposes only and does not constitute legal advice.