As a trusted legal firm serving the Central Coast of NSW and surrounds for over 60 years, we understand the delicate nature of matters involving estates, especially when it comes to contesting a will. At Tonkin Drysdale Partners, we’re committed to providing compassionate guidance and expert advice during this challenging time for you and your family.
The thought of contesting a will can be daunting, in this article we hope to shed light on some of the important questions we frequently get asked by our clients, such as: when it may be appropriate to contest a will, what to expect throughout the process, the important timeframe for contesting a will after the death of a loved one, and which parties are eligible by law to contest a will.
Timeframe for Contesting a Will:
It’s important to be aware of the timeframe for contesting a will after the death of a loved one. In NSW, you have 12 months from the date of death to contest a will. There are limited exceptions to this timeframe, so it’s essential to seek legal advice promptly if you’re considering contesting a will.
When to Contest a Will:
Someone contests a will on the basis that the deceased did not make adequate provision for them in their Will. When someone contests a Will, they are seeking the assistance of a court to alter the terms of the Will as to how the assets of the estate should be distributed.
Who is Eligible by NSW Law to Contest a Will:
It’s important to understand which parties are eligible under the Succession Act to contest a will in NSW. You must be an ‘eligible person’ [link: https://legislation.nsw.gov.au/view/html/inforce/current/act-2006-080#sec.57] to contest a will:
- Spouse or De Facto Partner: A spouse or de facto partner of the deceased at the time of the deceased’s death
- Children: Biological and adopted children of the deceased may have grounds to contest a will if they believe they have not been adequately provided for.
- Former Spouse: a former spouse is eligible to contest a will but are only successful in very limited circumstances
- Dependents: A grandchild who was at any time dependent on the deceased or a person who was at any time dependent on the deceased and was at that particular time, or at any other time, a member of the household of which the deceased was a member, may have legal standing to contest a will under family provision laws.
- Close Personal Relationships: a person who was living in a close personal relationship with the deceased at the time of the will-maker’s death
A parent, sibling, step-child or former de-facto spouse are not expressly listed as eligible persons. However such persons may be eligible if they meet the definition in section 57(1)(e) as a person who lived with the deceased and was dependent on the deceased.
What defence does an executor have if someone contests a Will?
The executor plays a crucial role when someone contests a Will. The executor represents the interests of the estate and is tasked with defending the will.
An executor must carefully consider the merit of the claim. Not all family provision claims have merit. As soon as a dispute over an estate arises, an executor should seek advice from an experienced estate litigation lawyer to understand the likelihood of the claim being successful and how to approach it.
In defending a family provision claim, the executor should place all the relevant evidence before the court relating to the case. This might include their recollection of the relationship between the claimant and the deceased, and statements from third parties.
On the other hand, an executor has a duty to act in the best interests of the estate. Quite often an executor can also be a beneficiary or be known to the applicant and is emotionally impacted by the claim. It can be challenging for an executor to remain neutral when these types of disputes arise but an executor must be careful not to fight a claim at all costs as the increased costs of litigation may not be in the interests of the estate and its beneficiaries.
Who pays the court fees?
In New South Wales the Court has discretion regarding legal costs in family provision proceedings.
If the Court makes an order for provision for an applicant, the estate will usually pay the applicant’s ordinary costs. However, if the applicant is unsuccessful and the Court makes no order for provision for the applicant, then the Court may order the applicant to pay the executor’s costs of defending the proceedings.
Process of making a Family Provision Claim
A family provision application to contest a will is made by filing in the Supreme Court of New South Wales:
- a Summons;
- a detailed affidavit by the person making the claim setting out the basis of their claim;
- a notice of eligible persons which includes the name and, if known, the address of any person who is, or who may be, an eligible person; and
- an affidavit estimating the plaintiff’s costs and disbursements, calculated on an indemnity basis up to and including the completion of a mediation.
The Summons will be listed for a directions hearing before the Registrar in Probate no later than the first Thursday after 28 days of the date of its filing.
If the 12 month period for making a family provision application is about to expire and the proceedings are being commenced to preserve rights, the plaintiff must file and serve the two affidavits and the notice of eligible persons, no later than 5 working days before the first directions hearing.
At the first directions hearing, the Registrar in Probate will give directions for the purpose of making information available at the earliest practicable date so that parties may make a realistic assessment of their respective cases. The Registrar in Probate will also give directions to encourage the early resolution of the proceedings. All proceedings involving a family provision application will be referred to mediation at the earliest practicable time. Parties are expected to confer for the purpose of providing to the Registrar in Probate a timetable for the preparation of the matter.
At the first directions hearing, the Registrar in Probate will usually make directions, including for the filing and/or service by the executor/administrator of an affidavit/s that addresses the following:
- the full name and date of birth of the deceased;
- a copy of the deceased’s Will and the probate or letters of administration, if granted (if a copy is not already annexed to the plaintiff’s affidavit) or a statement that the deceased is alleged to have died without a will;
- a description of the nature and value of the assets and liabilities of the deceased at the date of death (a copy of the inventory of property attached to the probate or letters of administration will suffice for the property of the deceased at the date of death, unless other assets have been discovered);
- what is, or is likely to be, the nature, and an estimate of the value, of:
- the assets and liabilities of the deceased at the date of the affidavit;
- any property of the deceased that has been distributed at any time after the death of the deceased and the date of the distribution of that property; and
- the gross distributable estate (excluding the costs of the proceedings).
- a description of the nature, and an estimate of the value of any property which, in the administrator’s opinion, is, or may be, notional estate;
- the name and address of every person who, in the administrator’s opinion, is holding property as trustee, or otherwise which is, or may be, the subject of notional estate;
- any testamentary and other expenses, or other liabilities of the estate that have been paid out of the estate of the deceased, including the amount, if any, paid for, or on account of, the administrator’s costs of the proceedings;
- whether any commission is to be sought by the administrator, and if so, an estimate of the amount proposed to be sought;
- the name and address of every person who, in the administrator’s opinion, is, or may be:
- an eligible person;
- an eligible person under a legal incapacity;
- a person beneficially entitled to the distributable estate; or
- a person holding property as trustee or otherwise;
- the name and address of every person to whom notice of the plaintiff’s application has been given, including any person who is, or who may be, an eligible person, as well as any person beneficially entitled to the distributable estate and any person holding property as trustee or otherwise, and the method by which such notice has been given (e.g. personal service, by post etc);
- a reply to the plaintiff’s affidavit, which may include allegations of fact contradicting facts alleged in the plaintiff’s affidavit or any other matters of fact to be relied upon by the executor/administrator;
- the identity of each beneficiary who is raising, or is likely to raise, his, her, or its, financial, material, or other, circumstances as a competing claimant, and each beneficiary who is not raising, or is not likely to raise, those circumstances with a summary of such circumstances; and
- an estimate of the executor/administrator’s costs and disbursements, calculated on an indemnity basis, up to, and including, the completion of a mediation.
Mediations will usually occur around 3 to 6 months from the date the application is filed, and are conducted by a Court Registrar for a half day unless there are factors warranting a longer period. The parties are expected to be personally present at the Court for the mediation absent exceptional circumstances.
If the matter settles at the mediation and the orders proposed do not require Court approval or an order extending time for the making of the family provision application, the Registrar conducting the mediation may make the necessary orders to finalise the claim.
If the matter does not settle, there will be a timetable made to prepare the matter for final hearing, which may include provision for the filing and service of a further costs affidavit and an updating affidavit by any party or beneficiary.
The general time frame for a final hearing, assuming nothing untoward happens between the time of making the application and the Court hearing, is somewhere between one and two years from the date when the application is filed.
At Tonkin Drysdale Partners, we’re more than just a team of highly experienced legal professionals—we’re compassionate allies dedicated to providing you with expert advice through life’s most difficult moments.
If you’re considering contesting a will or need expert guidance on defending a claim upon an estate, speak with our TDP team today.
Find out more about our services HERE, or contact Tonkin Drysdale Partners on 02 4341 2355.
