Mid Mountains Legal Blog

Contesting a Will (NSW)

Anthony Steel

If a family member has been left out of a Will or feels they have been inadequately provided for (adequate provision), they can contest the Will by making a family provision claim.

Who can contest a Will?

Someone may contest a Will if they:

  1. are an eligible category of person (an eligible person); and
  2. believe they have not been adequately provided for.

The Supreme Court of NSW may consider:

  1. the eligible person’s relationship with the deceased;
  2. the eligible person’s financial position;
  3. the size of the estate; and
  4. the deceased’s relationship with other eligible persons.

Contesting a Will

Generally, a Family Provision Claim is made in NSW if the deceased lived either:-

  1. in NSW at the date of their death and owned assets in NSW; or
  2. elsewhere but owned assets in NSW.

Eligible Applicants

Section 57 of the Succession Act 2006 lists eligible persons.

They are:

  1. The deceased’s spouse at the time of death;
    1. Someone who was in a de-facto relationship with the deceased at the time of death;
    1. The deceased’s child;
    1. The deceased’s former spouse;
    1. Someone who was:
      1. Dependent (wholly or partly) on the deceased at a particular time; and
      1. a grandchild of the deceased, or a member of the deceased’s household; and
    1. Someone who lived in a close personal relationship with the deceased when the deceased died. E.g. two adults living together and providing personal care and domestic support (except if they do so for payment or as a volunteer for a charity).

A sibling, parent, former de-facto spouse and step-child are not listed as eligible persons but if they lived with and were dependent on the deceased they may be eligible under category (e).

Time Limits

A family provision claim must be commenced within 12 months after the date of death. However if it is uncertain when the deceased died, the court may determine a date of death that is reasonable.

If a family provision application is made out of time, the Supreme Court of NSW can grant an extension of time to apply if the applicant can give the court ‘sufficient justification or excuse’ or ‘sufficient explanation’.

How do I get a copy of the Will?

Your first port of call for a copy of a Will should be the executor (the person responsible for administering the deceased’s estate) or the solicitor acting for the estate.

Persons entitled to inspect or be given a copy of the deceased’s Will are:-

  1. Anyone entitled to a share if the deceased died intestate;
  2. Any parent or guardian of a minor referred to in the Will or who would be entitled to a share if the deceased died intestate;
  3. The deceased’s parent or guardian;
  4. Anyone who may have a claim against the deceased;
  5. The deceased’s surviving spouse, de-facto or issue;
  6. Anyone with management of the deceased’s personal estate immediately before death;
  7. Anyone named or referred to in an earlier Will as a beneficiary;
  8. An attorney under the deceased’s enduring power of attorney;
  9. Anyone named or referred to in the Will;
  10. Anyone belonging to a class of persons prescribed by regulations.

Who pays the court fees?

The Judge has discretion as to who pays the legal costs in family provision proceedings. If the Judge orders provision for an applicant, the estate will usually pay the applicant’s ordinary costs. If however the Judge makes no order for provision for the applicant, then the Judge may order the applicant to pay the costs incurred by the executor in defending the estate.

Intestacy

Where a person does not have a Will or a Will cannot be found (i.e. the deceased died intestate), an application must be made for the court to grant letters of administration and appoint an administrator to distribute the deceased’s estate according to the intestacy rules.

The administrator distributes property in the following order:

  1. Spouse or de facto spouse and no children;
  2. Spouse or de facto spouse and children;
  3. Children only;
  4. Parents;
  5. Other relatives; and
  6. No relatives.

What if the Will is invalid?

You may be able to challenge the validity of a Will if you think:-

  1. The deceased did not have the mental capacity to make a Will;
  2. The Will was forged;
  3. The deceased was unduly influenced in making the Will; or
  4. There was fraud involved.

What does the court consider?

Section 60(2) of the Succession Act 2006 provides that the Supreme Court of NSW may consider the following matters in determining whether to make a family provision order.

  1. The relationship between the deceased and the applicant (including it’s nature and duration);
  2. The obligations or responsibilities the deceased had to the applicant or any beneficiaries;
  3. The nature and extent of the deceased’s estate (including notional estate and estate liabilities);
  4. The applicant’s financial resources (including earning capacity) and needs (present and future) and those of any other applicant or beneficiary;
  5. The financial circumstances of any other person cohabiting with the applicant;
  6. Any physical, intellectual or mental disability of the applicant or any other applicant or beneficiary;
  7. The applicant’s age;
  8. The applicant’s contribution to the deceased’s welfare or to the acquisition, conservation and improvement of the deceased’s estate, for which the applicant did not receive adequate consideration;
  9. Any provision the deceased made to the applicant during his/her lifetime from the deceased’s estate;
  10. Evidence of the deceased’s testamentary intentions, including statements made by the deceased;
  11. Whether the deceased wholly or partly maintained the applicant before his/her death and the extent to and basis on which the deceased did so;
  12. Whether anyone else is liable to support the applicant;
  13. The applicant’s character and conduct before and after the deceased’s death;
  14. The conduct of any other person before and after the deceased’s death;
  15. Any relevant Aboriginal or Torres Strait Islander customary law;
  16. Any other matter the Supreme Court considers relevant.

Can grandchildren contest a Will?

When a grandchild considers making a claim on their grandparent’s estate, whether the grandchild is an eligible person (i.e. were they wholly or partly dependent on the deceased at some time in their life (s 57(e) Succession Act 2006) is a relevant consideration.

General principles when considering a family provision application by a grandchild include:

  1. There is no obligation or responsibility for a grandparent to make provision for a grandchild;
  2. If a grandchild’s parents had died at a young age and they were left in the care of the grandparent, in most cases, a grandchild should be provided for out of the grandparent’s estate, particularly if the grandparent was providing for their welfare and had direct responsibility for them;
  3. If a grandchild can show that they cared for their grandparent, this could indicate that the grandparent had a moral obligation to provide for the grandchild;
  4. The payment of school fees or money given to a grandchild as voluntary support and kindness does mean that the grandparent has an obligation to provide for them;
  5. A grandchild isn’t wholly or partially dependent on a grandparent if they received gifts during the deceased’s lifetime. Additional factors would be required.
  6. The support of a grandparent towards their adult child does not mean that the grandparent has an obligation to provide for the grandchild. The grandchild must experience the whole or partial dependence directly;
  7. What legacy the grandchild will receive from their parent’s estate will be considered. However this does not generally counteract any moral obligation the grandparent has to provide for the grandchild’s maintenance, education and advancement in life.
  8. The Court will consider whether the grandchild’s parent/s have predeceased the grandparent.

Can I contest a Will if I live interstate?

Where you live does not affect whether you can bring a claim in New South Wales. Claimants who live in states or territories other than New South Wales or overseas can make a claim.

Where to now?

Contact us for free telephone advice about and for legal representation in contesting a Will.

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