Estate Planning, Probate & Estate Administration
In short, a Will cannot simply be altered after the death of the testator. Once a person passes away, their Will becomes a legally binding document, and the executor is responsible for administering the estate in line with the instructions contained in the Will. It cannot just be changed by unhappy family members.
Are there exceptions to this rule?
Variation of wills
While a Will typically cannot be modified post-mortem, there is an exception under the Succession Act 2006 (NSW). In New South Wales, beneficiaries may petition the Supreme Court to vary the terms of a Will if all parties adversely affected by the change agree. This provision is often to address unforeseen circumstances, minimise tax implications, or correct errors or ambiguities in the Will.
However, this condition does not allow for a complete rewriting of the Will. The Court must ensure that all affected individuals, particularly minors or those lacking capacity, have provided their consent and that the changes serve their best interests.
Family Provision claims
Individuals who believe they have not received adequate provision under a Will may pursue a Family Provision Claim. These claims allow eligible individuals - typically close relatives or dependents - to challenge a Will if they can prove that the deceased did not make "adequate provision" for their "proper maintenance, education, or advancement in life." While these claims are not easily granted, success is possible for those who fall within the eligible categories and can substantiate their claims.
Is it important to seek legal advice?
Navigating the process of varying a Will or contesting one through a family provision claim can be intricate. If you have questions about varying a Will or making a claim against a loved one’s estate, our experienced team at Dormer Stanhope is here to help with all your estate planning or will dispute needs.