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Kyle McCabe providing Q & A on 2GB discussing Unfair Wills – 13 February 2021

Kyle McCabe providing Q & A on the 2GB Chris Smith Morning Show discussing Unfair Wills - 13 February 2021


CS – Chris Smith / KM – Kyle McCabe –  C1,2,3, etc – Callers 

Listen to the Podcast

Read the transcript below:

KM     Hi Chris.

CS       Good to have your company. Now we know that the law allows someone to contest a will if they believe they’ve been hard done by.  So what factors does the court take into account when someone contests a will?

KM     Well Chris, in every claim for family provision, which is commonly referred to as contesting a will, the court conducts a two step process in assessing a claim. So firstly is the applicant an eligible person, and secondly has adequate provision been made for that person from the deceased person’s estate. Adequate provision is a subjective term, as you can probably imagine, and the court then looks at a range of factors to determine the question of whether adequate provision has indeed been made for an applicant. So, you’re looking at things like the relationship between the applicant, that’s the person making the claim, and the deceased person, the person that has passed away, the size of the deceased person’s estate, the financial circumstances and the financial needs of that applicant who is seeking provision, the health of the applicant as well as the character and conduct of both the applicant and the deceased person. So they are all thrown into the mix and if you get all the way to a hearing before a Judge, that’s all put into the machine and then you get a result out of that.

CS       And are there some factors that are considered more important that others?

KM     There are. So generally speaking, they’re all thrown in and given sort of an equal weight, but the primary factor which the court in their judgments have considered to be important would be that the financial circumstances of a claimant and what is their financial need.

CS       So if they were struggling in terms of their financial status, or their employment status, that could be a factor that could go in their favour?

KM     Most definitely, so I mean you could look at the situation by if there were two siblings of parents who have passed away, and one of them is living in Vaucluse or Mossman and has got investment properties and then someone else is on the disability support pension and hit tough times and might be receiving housing assistance, well the person who has fallen on tough times is seen as a better object in the court’s eyes.

CS       That’s really informative, thanks Kyle, much appreciated.  And Kyle, very quickly, the toll free number for Turner Freeman Lawyers?

KM     13 43 63

CS       Fantastic, have a great weekend, thank you very much for that.


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