Law Talks Episode: Can a niece or nephew contest an aunt or uncle’s Will?

Robyn: Good morning and welcome to another edition of 4CRB’s Law Talks where we breakdown the legal issues that affect the community. Today, we’re talking about family provision claims, specifically whether a niece or nephew can contest their aunt or uncle’s will after they pass away.

We have joining us from Attwood Marshall Lawyers, Estate Litigation Partner Lucy McPherson. Lucy has worked exclusively in estate litigation since 2010 and works across both Queensland and New South Wales jurisdictions. Thanks for joining us today, Lucy.

Lucy: Thanks for having me.

Robyn: Many people assume that being close to someone means they have an automatic right to a share of their estate, although anyone can contest someone’s will after they pass away. But is that really the case?

Lucy: That’s a really great question and it’s something that I find often catches people off guard. The short answer is no, not necessarily. I mean simply being close to someone does not automatically entitle the person to a share of their estate. Nor can just anyone contest a will after somebody passes away.

So, the legislation that governs inheritance disputes outlines who can specifically contest the will and only eligible persons outlined in the legislation can challenge a will under family provision law.

In New South Wales, those claimants include a spouse or de facto partner.

Robyn: Yes.

Lucy: A child of the deceased person, a former spouse, a dependent or somebody who was living in a close personal relationship. In New South Wales, those categories are quite wide. In Queensland, they’re a little bit more restrictive and they include spouses, which includes a de facto partner and children which includes stepchildren in Queensland and some categories of dependants.

So, the categories of eligibility are quite restrictive, and you need to be able to fall into one of those categories of eligibility in order to be eligible to bring a claim on an estate.

Robyn: So, what about nieces and nephews? Can they contest a will of an aunt or uncle?

Lucy: Nieces and nephews don’t automatically have the right to contest a will of an aunt or uncle. They must fall into one of those categories of eligibility that I was speaking to earlier.

So, sometimes a niece or nephew can fall into one of those categories of eligibility, but they need to satisfy the eligibility criteria and generally a niece or nephew we find fall into the category of dependence.

So, somebody who was dependent on their aunt or uncle.

In New South Wales, that dependency can occur at any time during the deceased person’s life. And in order to satisfy the dependency criteria in New South Wales, they must also be a member of the household of the deceased person.

Robyn: Okay.

Lucy: In Queensland, however the dependency must exist at the date of death, so the dependency must be in existence at the time the person passed away. So, I guess the answer to the question is that whilst nieces and nephews are not automatically eligible, they can fall into those categories of eligibility in some circumstances.

Robyn: Okay. Lucy, can you give our listeners an example of a real case?

Lucy: Yes, there was a recent decision, when I say recent it was a 2023 decision of Noble and Durant that considered the eligibility of nieces to bring a claim on their aunt’s estate.

So, in this decision, which was considered by the Supreme Court of NSW, the court focused on the eligibility of nieces under the family provision legislation and the court found that the nieces were eligible under section 57 of the Act in New South Wales.

As people, both of the nieces had lived with the deceased person during her lifetime and had also been able to demonstrate dependency on the deceased, remembering that in NSW dependency doesn’t have to be at the date of death, it can be any time of their life.

However, although the court found that they were eligible to bring a claim on the estate, the court considered that there were not factors warranting the making of the application. So, what that means is that for some categories of eligibility in NSW it’s not enough to show that you fall into one of the categories of eligibility, you must also demonstrate what we, as lawyers, call factors warranting. And factors warranting not really factors which the Court regards that the community would consider this individual to have an expectation to provide for these nieces so that the community expects that this aunt should have provided for these nieces.

And that’s where this case really fell down. The court concluded that whilst they were eligible, the court dismissed the claim because they were not factors which warranted the making of the application, and I think the reasoning behind that was really there were some concerns about the relationship that existed between the aunt and the nieces. There was a period of lengthy estrangement. So, distancing of the relationship between the applicants and the deceased person. And on that basis, the court found that there wasn’t an expectation that these individuals should be left provision out of their aunt’s estate.

Robyn: So, what did the court focus on in deciding this case?

Lucy: Well whilst the court examined the eligibility criteria because it was very live, I guess in this case it was a very live issue in the sense that these were very obscure claimants, in the sense that they were not normal claimants before the court but falling to those very common categories of eligibility for the court, had to consider their eligibility to bring a claim.

But what this case really showed was that eligibility alone doesn’t mean that the claimants will succeed in an application before the court.

They really need to demonstrate those factors warranting and also demonstrate that they are in a position of financial need to know that they require the provision from the Court. And, you know, falling into that consideration of factors warranting and considerations of the nature of the relationship between the claimants and the deceased person, because that’s really important for the Court’s determination of whether there is that community expectation to provide for the claimants. What was the relationship like between the claimants and the deceased person? And was it a case where the claimants were considered to be natural objects of that person’s affection, and the court ultimately said in this case, that they weren’t.

Robyn: So financial dependency and financial need play a major role in these types of claims. What does that mean in practical terms for nieces and nephews who might be thinking about contesting a will?

Lucy: It really means that in order to try and fall into this category of dependence under the legislation, they really need to provide clear evidence of financial support from the deceased person.

For instance, were they living with the deceased person and relying on them for accommodation. Did they receive financial assistance from the deceased person during their lifetime. And this must be ongoing financial assistance. It’s not enough for a claimant to receive a one-off gift or some sort of emotional connection.

That’s not enough to satisfy this dependency, there must be a consistent pattern of financial reliance on the deceased person. Another really important consideration in all family provision claims, not just for nieces or nephews, but for all family provision applicants, is this issue of financial need.

So, the court considers whether the applicant has been left without adequate provision in the estate and one of the really important considerations in answering that question is well, is this claimant in a position of financial need. Do they have a need for provision from the estate and the court has said before that, you know, if you’re not able to demonstrate that financial need, then the Court cannot make an order. Now that is relative. So, what I mean by that is you know where the assets of estate are substantial then that financial need is also going to be relative to the size of the estate.

Robyn: So, for our listeners who are thinking about their own estate planning, what’s the key takeaway here?

Lucy: The key takeaway is planning, planning ahead, and making sure that you’re clear about your intentions as to what you want to happen with your assets when you die.

There are some strategies that you can adopt in order to try and mitigate against a family provision claim being made in your estate, and a lot of people don’t realise this because I guess a lot of people don’t turn their mind to the fact that some of these individuals like a niece or nephew like we’ve been discussing might be eligible to contest their estate. And they may be completely oblivious to that fact. But it’s really important to have your estate planning taken care of by an experienced estate planning lawyer. Somebody who is well versed in all these matters so that they can provide you with advice in relation to what might happen after the fact.

You know what might happen once you are deceased, in order to protect your wishes and ensuring that the right strategy is in place to do that. And if you want to exclude somebody or if you want to try and mitigate against somebody bringing a claim on your estate, you know there are certain strategies that you can adopt in order to try and achieve that. You may also be asked to try and document you know, your reasoning for structuring your estate planning that particular way, and the reason to document your reasoning is really because ultimately it may be read by judge one day.

Robyn: And I imagine that’s the same advice for those that are left out of a will that feel they should have been provided for to seek legal advice.

Lucy: Absolutely.

So look, this is a very niche area of law and I think that seeking the right advice from an experienced practitioner, that deals with these types of applications every day is really crucial whichever side of the coin you’re falling on, because, it’s really important to have somebody who’s structuring your estate plan, drafting your will, who is aware of what might happen later on, as well as somebody who may be seeking advice in relation to contesting a will or needs to be aware of, you know, the circumstances surrounding the drafting and putting the estate planning in place in the first place.

It’s a very nuanced and niche area of law, so get the right advice from an experienced practitioner is absolutely crucial.

Robyn: Yeah, that’s great advice, Lucy. Thanks for your time today.

Lucy: You’re welcome. Thanks Robyn.

Robyn: You’ve been listening to Law Talks here on 4CRB, which you can hear every Friday morning from 9 o’clock.