The law provides that people who have unfairly been excluded from a will, or not adequately provided for may be able to apply to a court to change the distribution of an estate.  Only “Eligible Persons” – spouses, children and dependents – are able to make such a claim which is known as “Contesting a Will”, or a Family Provision Claim.

Segelov Taylor Lawyers are able to provide advice and representation in Family Provision Claims.

What is Contesting a Will?

Where a will (or the rules of intestacy) exclude someone, or do not make adequate provision for them, the law permits an application to be made to adjust the distribution under the will so as to render it more appropriate.  Only a limited class of people, known as eligible persons, are entitlement to make such an applictaion.

The process is known as contesting a will.

Who are eligible persons?

Eligible people are, in relation to the deceased:

  • 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.

When is a claim likely to succeed?

To be successful in a claim you must be an eligible person (see above), started within 12 months of death (or longer if the court permits) and 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.

What are the time limits?

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.

How is a claim made?

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.

Are there other options?

An alternative to contesting a will is to challenge the will.

A challenge to a will is appropriate if the concern is not that the will is unfair, but that the deceased when they made it lacked mental capcity, or was subject to undue influence and accordingly that the will doe snot reflect their true wishes.

Segelov Taylor are able to assist in challenging wills.

What is 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.

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We are able to be contacted by phone, email, web chat or video conferencing.  We have offices in Melbourne and Sydney, and regularly see clients who are to unwell to travel in their homes or hospital (although this is limited at present due to Covid-19).  We act for people with asbestos diseases in every State in Australia as well people living overseas.

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