Will breaking


Many people take the view that “I made the money and I should be able to give it to whoever I want in my will”. Some people even regard this as a natural right. However, since the 1800’s governments have sought to make provisions for needy people who have been left out of wills.

The range of possible applicants is wide. It is not just spouses and infant children but also the following:

  • a person who was living in a de-facto relationship with the deceased person;
  • children, regardless of age;
  • a former husband or wife;
  • a person who was:
  • wholly or partly dependent on the deceased person; and
  • a member of the deceased person’s household at any time; and
  • a person who was living in a “close personal relationship” with the deceased person.

The Succession Act in New South Wales is the law that allows these classes of applicants to make claims should they be able to establish that they have a need. The Government considers that they are striking a balance in Wills and estates between making proper provision for the maintenance and support of people who should have such provision made for them on the one hand, and reasonable freedom of disposition on the other.

Any claim must be made within 12 months of the death of the deceased.

It is always important for a solicitor to take into account the possibility of claims when making a will. If one child has fallen on hard times, even if it was their own fault, it is important to consider that he or she may make a claim and that will involve the estate in expense and legal fees which will reduce the value of the estate for all beneficiaries. In this situation the will should take into account the possibility of the claim and make a greater provision to correct this.

To make an appointment to discuss your will and estate requirements, please call Henry Packham on 02 9410 3846 or click here to email your enquiry.