Defending your will and estate against a claim
Certain people can make a claim against your estate, after your death, if they are not happy with the provision made for them in your will.
What can I do to prevent a claim or help my executor defend a claim that may be made against my will and estate?
In New South Wales, the only way to prevent a claim arising after your death is to reach an agreement with the person who may make a claim, that they will not make a claim (usually in return for some monetary amount or property or for a reciprocal release) against your estate AND to have that agreement (containing a release of that person's right to bring a claim) approved by the Supreme Court of New South Wales. If you have entered into a new relationship, or a second relationship, each person in the relationship may be willing to agree, for example, that they will each leave their estate to their respective children and will not make a claim against the estate of the other. However, the release of rights will only be binding against the other if the release is approved by the Court. We can assist you to:
reach an agreement with the person who may make a claim;
document that agreement; and
apply to the Supreme Court of New South Wales for approval of the agreement.
If reaching an agreement with the person who may make a claim is not an option or is not possible, then the next best thing is to leave a statement, in a form that complies with the rules of evidence and will be acceptable to the Court, to explain why you have not made provision for the person who may make a claim, or to explain why you would not want the person in question to receive more or different provision than you have made for them. You are the best person to give that evidence but if you don't leave a statement in this form, the Court will not be able to consider your reasons and will have to rely on second hand evidence of your wishes from other people. Help your executor to defend a claim against your estate by leaving a detailed statement, professionally prepared, that complies with the rules of evidence.
There are other options available depending on your circumstances. Contact us now to discuss your options with us.