Challenging a Will

The Family Provision Act 1982 (now the Succession Act) started in 1983 and applies to people dying on or after that date.

The Act corrects unfair treatment of people who had received no proper provision in a will. An "eligible person" can apply for provision out of an estate whether or not there was a will, and whether or not they were mentioned in a will.

Those eligible to apply under the Act include:

• The husband or wife; or a defacto
• A child of the deceased person
• A former wife or husband
• A person who was, at any time, wholly or partly dependent upon the deceased and who was, at any time, a member of a household of which the deceased was a member
• A grandchild of the deceased person who was, at any particular time, wholly or partly dependent upon the deceased

You need to consider the implications of the Act when drawing your will, or indeed to see if you yourself may make a claim on an estate from which you have been unfairly left out.

Disputing a Power of Attorney

In some cases it may be that there is a dispute as to whether not an attorney is acting correctly. The New South Wales Civil and Administrative Tribunal ( NCAT) can review an enduring power of attorney and make orders under the Powers of Attorney Act 2003. It can declare that a person who made an enduring power of attorney ('the principal') did not have the mental capacity to do so and that the enduring power of attorney was invalid.

Attorneys are not supervised nor are they required to report to any authority. If you are concerned that the attorney is not acting in the best interests of a person who has lost capacity, you can make an application to NCAT to review the enduring power of attorney.

NCAT can review enduring powers of attorney under the Powers of Attorney Act 2003 if it considers the request for a review is in the best interests of the person who made the enduring power of attorney. It can appoint a substitute attorney and it can declare the principal is not competent to manage their affairs. An application can be made by any interested person.

The definition of an ‘interested person’ is very wide. It is defined as: An attorney appointed under an Enduring Power of Attorney; the person who made the Enduring Power of Attorney (the principal); any person who is the appointed guardian of the principal ; any person who is the enduring guardian of the principal; an attorney whose appointment has purportedly been revoked ;any other person who NCAT considers has a proper interest in the proceedings or a genuine concern for the welfare of the principal.

If it is satisfied of the need to do so, NCAT can vary or revoke the enduring power of attorney. The Tribunal has the power to remove an attorney from office or appoint a substitute attorney. It can reinstate an enduring power of attorney that has lapsed because the attorney is no longer able to act. It can also require an attorney to provide accounts and information. We can assist with advice in this regard as well as representation if necessary.