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Challenge to Will by nephew thrown out

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In the Supreme Court of Victoria’s February 2011 judgment  in Jackson v Newns, a challenge to a Will by a nephew was summarily dismissed.

In 1998, the class of eligible applicants who could challenge a Will in Victoria was expanded from spouses and children to anyone for whom the deceased owed a responsibility to make adequate provision for their proper maintenance and support.  We are still sorting out who fits within the class.

Usually the courts have not recognised the existence of a responsibility to provide for nieces and nephews.  However, in most cases people die survived by a spouse and/or children, and their claims take priority.

The deceased in Jackson & Newns was a widower who had no children.  In his claim, the nephew stated that his uncle was akin to a ‘father figure’ to him, and therefore his uncle had a responsibility to make adequate provision for his proper maintenance and support.

The Court found that the nephew was never dependent on his uncle, and just because they had much in common and it seems adored each other was not enough to conclude the uncle had a moral duty to provide for his nephew “more than was already provided“.

These words may be important because the nephew under the Will was left $250,000 of an estate worth about $1,000,000. The nephew was making a claim for further provision.

The question of whether the nephew could have made a claim if there was no provision made for him in the Will remains unanswered.

It is important when making a Will to consider all your beneficiaries and any potential claimants carefully.

If you have any queries about your Will, the administration of a deceased estate or an estate dispute, please contact one of our Wills and Estates lawyers.

Author: Paul Watkins, Accredited Wills and Estates Specialist

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