Contesting a Will in NSW: Family Provision Claims

Losing a loved one is hard enough without feeling that the will does not treat you fairly. If you are thinking about contesting a will in NSW, it helps to understand that the law gives some people a right to apply to the Supreme Court for greater provision from an estate, but only within a strict time limit. This article is general information only and does not replace legal advice about your situation.

Can you contest a will in NSW?

There are two main ways a will can be challenged:

• A challenge to validity. This argues that the will is not a valid document, for example because it was not signed and witnessed properly, because the will-maker lacked mental capacity, because there was undue influence, or because it is not the person's final will.
• A family provision claim. This does not say the will is invalid. Instead, it argues that the will (or the rules that apply when there is no will) did not make adequate provision for the applicant's proper maintenance, education or advancement in life.

Most challenges in NSW are family provision claims, made under the Succession Act 2006 (NSW).

Who can make a family provision claim?

Only certain people, known as eligible persons, can apply. They include:

• a spouse or de facto partner of the deceased;
• a child of the deceased;
• a former spouse;
• a person who was financially dependent on the deceased and was a grandchild or lived in the same household; and
• a person who was in a close personal relationship with the deceased at the time of death.

Being a family member does not automatically make you eligible, and being eligible does not guarantee success. Siblings, friends and other relatives will usually not be eligible unless they fit one of these categories.

The time limit: act quickly

A family provision application generally must be filed in court within 12 months of the date of the person's death. This is a strict deadline, and it runs from the date of death, not from the date probate is granted or the will is read.

The Court has some power to extend time, but an extension is not automatic and can be refused. It is a risk no one should rely on. If you think you may have a claim, you should speak to a solicitor as soon as possible. Waiting to see what happens, or hoping that family discussions will resolve matters, can mean losing your rights altogether.

What does the Court consider?

The Court first decides whether the applicant is an eligible person and whether adequate provision has been made for them. It looks at the whole picture, and the factors include:

• the relationship between the applicant and the deceased, and any obligations the deceased owed to them;
• the size and nature of the estate;
• the applicant's financial position, age, health and any disability;
• any contributions the applicant made to the deceased's property or welfare;
• any provision the deceased made for the applicant during their life; and
• the needs of other people who may have a claim on the estate.

If the Court decides further provision should be made, it can order that money or property be paid from the estate. In some cases the Court may also treat certain property that was dealt with before death as part of a notional estate, so that it can be used to satisfy an order.

What is the process?

Claims are heard in the Equity Division of the Supreme Court. Many matters are resolved before a final hearing, often through mediation, which is encouraged and can save time, cost and family strain. If a settlement cannot be reached, a judge decides the case.

Costs and risks

Legal costs do not always come out of the estate. An applicant who is unsuccessful may have to pay their own costs and possibly those of the other side, although the Court has a discretion about costs. Before starting a claim, you should understand the likely strengths, weaknesses and costs.

If you are an executor

If you are the executor of an estate and a claim is made or threatened, you have a duty to act carefully. Distributing the estate too early can expose you to personal risk, so you should obtain advice before distributing assets while the time limit may still be running.

Frequently Asked Questions

How long do I have to contest a will in NSW?

For a family provision claim, generally 12 months from the date of death. The deadline is strict, so you should get legal advice well before it approaches.

Can I contest a will just because I disagree with it?

Disagreeing with the will, or feeling it is unfair, is not enough on its own. You must usually either be an eligible person who can show that adequate provision was not made, or have grounds to challenge the will's validity.

Will a family provision claim definitely succeed if I am a child of the deceased?

No. Being a child makes you an eligible person, but the Court still assesses the circumstances, including your needs, your relationship with the deceased and the other people with claims on the estate.

Do I have to go to court?

The claim must be commenced in court, but most disputes settle before a hearing, often after negotiation or mediation. A solicitor can advise whether settlement is realistic.

This article is general information only and is not legal advice. Laws and processes change, and every situation is different. Speak to a lawyer about your circumstances before you act.