De Facto Partner Will
The client is concerned about their father's Will, which was created approximately two decades ago in New South Wales. Their father is currently in poor health and hospitalized. The father's partner, identified as a de facto partner, intends to have a new Will drafted. The client is the father's only living sibling and wishes for the original Will's intentions to be honored. The client seeks clarification on whether the partner can facilitate the creation of a new Will under these circumstances.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkCan my father's partner legally make a new Will on his behalf without his consent?
In New South Wales, a person must have testamentary capacity to make a valid Will, meaning they must understand the nature of the document and the extent of their assets. Generally, only the person making the Will can alter it. A partner cannot create a Will on behalf of your father without his explicit consent. If your father lacks capacity, an application can be made to the Supreme Court of NSW for a statutory Will.
What legal steps can I take to ensure my father's original Will is honored?
To ensure your father's original Will is honored, confirm that it has been properly executed. Engage a solicitor to review it for legal validity under the relevant Succession Act. If there is any sign of attempts to alter the Will without proper authority, consider seeking an injunction to prevent changes or apply to the Supreme Court for a declaration of the original Will's validity.
How can I challenge a new Will if I believe it doesn't reflect my father's true intentions?
To challenge a new Will, you may contest it in the Supreme Court of New South Wales. Grounds for contesting include lack of testamentary capacity or undue influence. Evidence such as medical records or testimony may be crucial. Act promptly, as there are time limits for contesting a Will.
What evidence do I need to prove my father's mental incapacity if I suspect undue influence in changing the Will?
To prove mental incapacity regarding undue influence, evidence may include medical records showing cognitive decline. Witnesses who observed interactions between your father and his partner can testify about his capacity and any coercive behavior. Additionally, documentation of your father's previous testamentary intentions can be beneficial.
Is there a way to access or view the current Will to understand its contents and ensure my father's wishes are met?
To access your father's Will, determine if it is held by the solicitor or lodged with the Supreme Court. If named in the Will, you can request a copy. When a person dies, the executor typically applies for a Grant of Probate, making the Will public. You can search for it in the NSW Online Registry.
