Contesting a Will in NSW

When a family member dies it is often an extremely emotional time. This can be made worse if there is any kind of dispute against the Will of the deceased.

A Will can be challenged if you have not been adequately provided for your maintenance, education and advancement in life.

However, not just anyone can apply for provision or further provision from a deceased’s estate.

You must fit into one of the six (6) categories of “eligible persons”. Otherwise no matter how close of a relationship you had with the deceased, you cannot contest a Will under the Family Provision legislation.

The six (6) categories of “eligible persons” under section 57 of the Succession Act (2006) (“The Act”) are as follows:

  • A person who was the wife or husband of the deceased person at the time of the deceased’s person’s death;
  • A person with whom the deceased person was living in a de facto relationship at the time of the deceased persons death;
  • A child of the deceased;
  • A former wife or husband of the deceased person;
  • A person:
  1. a.    who was, at any particular time, wholly or partly dependent upon the deceased person; and 
  2. b.    who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household or which the deceased person was a member;
  • A person with who the deceased was living in a close personal relationship at the time of the deceased’s person’s death.

NB The above relates to matters where the deceased passed away after 1 March, 2009

A “Close personal relationship” is defined in section 3(3) of the Act as a relationship between two adult persons, whether or not related by family, who are living together one or each of whom provides the other with domestic support and personal care.

A close personal relationship does not exist between two persons where one of them provides the other with domestic support and personal care for fee and reward or on behalf of another person or organisation.

The time limit for bringing a family provision claim is now 12 months from the date of death pursuant to section 58(2) of the Act. The Court still has power to extend the time if it is satisfied that sufficient cause can be show.

An Application for a family provision order may be made whether or not there is a grant of administration of the estate.

Not all eligible persons are entitled to provision or further provision out of the estate of the deceased person and will only be successful if he or she can demonstrate need or a moral obligation owed to him or her by the deceased. This will also be dependent upon the size of the estate and there being enough money in the estate to take some from the beneficiaries.

The court will consider 4 main things when deciding if adequate provision has been made from the Estate for your proper maintenance and support, namely:-

  1. Your financial position;
  2. The size and nature of the deceased’s estate;
  3. The totality of the relationship between yourself and the deceased;
  4. The relationship between the deceased and other persons who have a legitimate claim on the estate.

The court looks towards your own financial position and the size of the estate to determine your needs relative to the value of the estate. The court looks at your relationship with the deceased, and the relationship the deceased had with others entitled to a claim on the estate, to ascertain whether the conduct of those claiming disentitles them to provision and whether it is fair that the share of other beneficiaries’ is reduced to make provision for yourself. The court may also look at the financial position of the other beneficiaries in comparison with your own financial circumstances.

A Will can also be challenged as follows:

Undue Influence – if someone attempts to influence the terms of the Will or if physical, psychological or threatening duress was placed upon the deceased the Will can be contested.

Incapacity – if the deceased lacked capacity to make the Will meaning they did not understand the nature and effect of their Will they were signing or were unable to make rational decisions about how their estate is distributed the Will can be contested.

Contract to Make a Will – sometimes people may choose to enter into a binding contract to make their Wills in a certain way. Problems occur when one of the parties makes a later Will which is different to the contract. On most occasions the other party is not told of the change or in some circumstances has passed away. Providing the Wills have been drafted correctly and can be enforced legally, a person affected by the breach of the Contract may be entitled to make a claim.

If you think you are eligible to contest a Will and would like further advice please contact our Department Manager Donna Tolley, on direct line (07) 5506 8241 or by email on dtolley@attwoodmarshall.com.au to arrange an appointment.