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NSW Where Does My Sister Stand Regarding Her Partner's Will?

Discussion in 'Wills and Estate Planning Law Forum' started by Mary June, 26 October 2015.

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  1. Mary June

    Mary June Member

    14 October 2015
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    Hello, I just have a question for my sister.

    My sister has been with her partner for 6.5 years and she just found out he has a will done. It was done 11 years ago. Everything is left to his two children. Around about 5 years ago he brought a house for them together. Her name isn't on the home loan papers, but she did take out a personal loan to build a granny flat on the property. Where does she stand if he dies?
  2. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

    19 June 2014
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    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:



    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
    "(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
    Tim W likes this.

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