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Just two months after former Australian Prime Minister Bob Hawke passed away, it has been revealed his daughter is preparing to sue his second wife over her share of the will.

According to media reports this week, Mr Hawke left each of his children $750,000 through his will. But it is also alleged he left the rest of his estate to his second wife.

Now, Mr Hawke’s daughter is gearing up for a legal battle to claim a share of her father’s estate.

While everyone has a right to make a will leaving their estate to whomever they chose, wills may be challenged once a person has passed away. This legal option is made available generally to family members to ensure that those in need of support don’t miss out.

And while we mostly hear about legal battles around wills in high-profile cases – like Mr Hawke’s – wills disputes happen every day.

The legal stoush

Mr Hawke’s daughter will attempt to apply to the NSW court for a Family Provision Order. This type of order is available in each state across Australia. A court has the discretion to make these orders if it is satisfied the provisions made for the child of the deceased will not be enough for their proper education, maintenance or advancement.

The responsibility to prove this in court will be a tough job for Mr Hawke’s daughter, as the onus to prove it always rests in the hands of the family member making the claim.

According to the courts, the concept around what might be ‘adequate’ is flexible, changes from case to case, and is judged on the facts of each matter. And it is based on a test of community standards and expectation.

Spouses vs children in the eyes of the court

In the eyes of the community, it is generally not expected that a parent will provide for a child for the rest of his or her life.

Mr Hawke’s primary obligation will likely be seen to have been to his wife of more than 20 years once he passed away, rather than to his adult daughter.

However, the court will ultimately have the final say as to whether an award of provision is made, and how much is awarded.

When making the decision, the court will the take into consideration the financial needs and resources of his daughter, the nature of the relationship between her and her father, the extent of any obligations or responsibilities owed to her by her father and any provision made for her during her lifetime.

They will also take into the account the gift of $750,000 reportedly given to her during her father’s lifetime.

The size of the estate

Finally, in deciding whether Mr Hawke’s daughter will be successful in her claim, the size of the estate will also be taken into consideration by the court.

The estate reportedly includes $15 million from the sale of Mr Hawke’s Northbridge home and a big question mark remains over whether his daughter has a claim to any portion of the proceeds.

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