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 the:

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

What determines the appropriate jurisdiction?

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.

Who are eligible persons?

The Succession Act 2006 lists eligible persons.

They are:

1. The deceased’s spouse at the time of death
2. Someone who was in a de-facto relationship with the deceased at the time of death
3. The deceased’s child;
4. The deceased’s former spouse;
5. Someone who was:
   • Dependent (wholly or partly) on the deceased at a particular time; and
   • a grandchild of the deceased, or a member of the deceased’s household; and
6. Someone who lived in a close personal relationship with the deceased when the deceased died.

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).

Are there 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 set out in the Succession Act 2006 (NSW).

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, 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.

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?

The Succession Act 2006 lists matters to which the Supreme Court of NSW may have regard in determining whether to make a family provision order.

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) (Succession Act 2006 (NSW)) 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?

Claimants who live in states or territories other than New South Wales or overseas can make a claim in New South Wales.

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