The death of a loved one is a difficult time regardless of the circumstances. Learning that you have not been adequately provided for in your loved one’s Will, undoubtedly makes this difficult time even more challenging. If you believe you have been unfairly excluded from a loved one or family member’s Will, or you believe that the benefit you have been apportioned is inadequate, our experienced wills and estate lawyers are here to help.
1. When can a Will be contested?
When a person makes a Will, they have the freedom to distribute their estate to whomever they choose. However, the Succession Act enables the Court to override the provisions in the deceased’s Will or the rules of intestacy so that an eligible person who is not adequately provided for in relation to his or her proper maintenance, education or advancement in life will receive provision from the deceased’s estate or an increased provision from the estate. This is known as a family provision claim.
2. Who can contest a Will?
It is important to understand that family provision claims can be brought by a variety of people, not just beneficiaries of the Will. The Succession Act provides that an eligible person entitled to make a family provision claim includes:
- a spouse or de facto partner of the deceased at the time of the deceased’s death,
- a child of the deceased,
- a former spouse of the deceased,
- a grandchild who was at any time wholly or partly dependant on the deceased,
- a member or former member of the deceased’s household who was at any time wholly or partly dependant on the deceased, or
- a person who was living in a close personal relationship with the will-maker at the time of the will-maker’s death.
To be successful, the applicant needs to establish that they are an eligible person, and that the provision made for their maintenance, education or advancement in life, are inadequate.
When determining whether to make a family provision order, the Court may take a wide range of factors into consideration, including:
- the relationship between the applicant and the deceased,
- the extent of the deceased estate,
- the financial circumstances of the applicant,
- any special needs of the applicant,
- evidence of the deceased’s testamentary intentions,
- the conduct of the applicant.
Our experienced wills and estate lawyers at Tonkin Drysdale Partners are able to advise you on your prospects of success in regard to your specific circumstances.
3. Is there a time limit for contesting a Will?
In NSW, Wills can be contested within 12 months of the will-maker’s death, or in some cases longer where leave of the Court is granted. If you believe you have not been provided for in a Will, it is therefore very important to consult a wills and estates lawyer quickly.
4. Making a family provision claim.
Where the deceased lived and owned assets located in NSW, a family provision claim is usually made to the Supreme Court of NSW. This remains the case even if the person making the claim lives interstate or overseas.
5.Who pays the costs of making a claim?
In NSW the Court has discretion with regard to the costs of a family provision claim. Where the Court makes a family provision order, in most instances the legal costs of bringing the claim will mostly be recovered from the deceased’s estate. However, it is important to realise that where a family provision claim is unsuccessful, the Court may order the applicant to pay the executor’s costs associated with defending the claim. It is therefore important to speak with an experienced Wills and estates lawyer before making your application.
