Hi Mary June
Your sister will have a legal right to challenge the 11 year old Will via a Family Provision Claim, as she has not been provided for at all.
Given the expense this could put her partner's estate through, I highly recommend she talk to her partner, and determine whether he is aware of this, and the fact that it will just mean there will be less to share, after legal and Court costs... and if he was not aware, suggest he see his lawyer about making a new Will.
The basis to claim is under the following legislation:
SUCCESSION ACT (NSW) 2006
CHAPTER 3 - FAMILY PROVISION
SECT 57 Eligible persons
(1) The following are
"eligible persons" who may apply to the
Court for a
family provision order in respect of the estate of a
deceased person:
(a) a person who was the wife or husband of the
deceased person at the time of the
deceased person’s death,
(b) a person with whom the
deceased person was living in a de facto relationship at the time of the
deceased person’s death,
(c) a child of the
deceased person,
(d) a former wife or husband of the
deceased person,.... etc."
SECT 59
When family provision order may be made
http://www5.austlii.edu.au/au/legis/nsw/consol_act/sa2006138/s59.html
....
"(c) at the time when the
Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the
will of the
deceased person..."
Take care not to put pressure or undue influence
Your sister needs to be careful that she is not seen to put undue pressure on her partner... and that she does not dictate the terms of the new Will, and is not involved in witnessing the Will, or have any involvement in creating the new Will.
Joint Tenancy
Another alternative, is to have a transfer lodged on the title to the property, so that they are both owners of the property as joint tenants.
Generally stamp duty exemptions will apply to these type of transfers, but always seek legal advice prior to taking any action, to double check.
A joint tenancy means, that as long as neither party does not
sever the joint tenancy (for example - a joint tenancy is automatically severed upon the bankruptcy of any one of the joint tenants) whoever survives the other, will automatically own the whole property, outside of whatever the Will states.
Kind regards
