Testamentary freedom is however curtailed by the provisions of the Succession Act 2006 which permit those who are the normal beneficiaries of a will such as children, wives and husbands who are left out of a will or not properly provided for, to make claims against the estate.
One of the abiding principles of New South Wales law is that a testator (will maker) has testamentary freedom to determine who is to benefit from his or her estate in his/ her will.
Such a claim is commonly known as a “family provision claim” and can only be made by an eligible person. Most commonly, eligible persons are spouses and children.
Claim by former spouses
One of the lesser known available claims for an eligible person, is a claim by a “former spouse”.
A former spouse may make a claim where there were circumstances in which an ordinary member of the public might believe that the former spouse should be the object of a testamentary disposition by a deceased. The former spouse must show there are “factors warranting” the making of the claim.
We recently acted for Marcia Benaud, the former wife of Richie Benaud, former test cricketer and Channel Nine cricket commentator, in her claim against his estate.
Details of the grounds and basis for the claim must remain confidential but Mrs Benaud was able to resolve her matter. Her son Greg Benaud, eldest son of Richie Benaud also made a claim which was resolved.
Turner Freeman has specialist lawyers who can advise you on making a family provision claim. If you believe you have been unfairly left out of a will, contact your nearest office on 13 43 63.
Watch Marcia’s testimonial video below:
