The Succession Act 2006 (NSW) allows an eligible person to contest a will where they have been left out of the will or not adequately provided for.
Who can make a claim?
A claim can be made by :
- A spouse or former spouse;
- A de-facto (including same sex partner);
- A child (including adopted child);
- A person who was, at any particular time, dependant (wholly or partially) who is a grandchild or was a member of the deceased’s household
- A person the deceased was living in close personal relationship with at the time of death.
Time limit to make a claim
In NSW, a claim must be commenced within 12 months from the date of death. There is limited scope for obtaining an extension of time. In other states different time limits apply.
Making a claim
To be successful in a claim you must be an eligible person (see above) and be able to satisfy a court that you have not received adequate provision for the proper maintenance, education or advancement of life in the deceased’s will. Each case will be determined on its facts. A court will, in determining the matter, consider the following:
- The adequacy for the provisions for your maintenance, education and advancement of life.
- The circumstances of other eligible persons or beneficiaries under the will.
- The nature and duration of your relationship with the deceased.
- Your circumstances including your financial resources, earning capacity and your health.
- The size of the estate.
- Your relationship with the deceased including the nature and duration of your relationship.
- Any contributions you made both financial and non-financial to the deceased in their lifetime.
- Any provisions the deceased made for you during their lifetime.
The above list is not exhaustive and the court is able to consider any other matters it considers relevant to the determination of the claim.
How to make a claim
A claim is made by filing an application in court along with a detailed Affidavit setting out the circumstances of the case. The estate will respond and file its own evidence. The matter will then be listed for compulsory mediation. If the claim does not resolve at mediation it will be listed for hearing. If a matter proceeds to hearing, then it normally takes between 12 to 18 months to finalise.
What if there is no Will?
If a person dies without a will then the rules of intestacy apply. A family provision claim can still be brought in the case of a person dying intestate if the intestacy rules do not provide for an eligible person.
There may be alternative avenues available to dispute a will if there are questions the deceased’s mental capacity at the time the will was made. Further, there may be a suggestion that the deceased was unduly influenced at the time of making the will and the will does not reflect the deceased’s true wishes.