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.
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.
Eligible people are, in relation to the deceased:
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 above list is not exhaustive and the court is able to consider any other matters it considers relevant to the determination of the 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.
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.
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.
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.
We offer a free initial case assessment in all matters.
We will obtain preliminary information from you and provide some indicative advice as to:
The case assessment may be by phone, via video conference (such as Zoom or Teams) or in person. There is no cost associated with this case assessment, nor any obligation to instruct us in your matter.
To arrange your free case assessment please complete the form below or contact us by phone or email.
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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You can chat to us online by using the webchat below (where it says Speak to us!). David and Tanya are often able to respond immediately. If they are not available, an operator will take your details and we will get back to you within a day.
Segelov Taylor acts on a ‘no win no fee’ basis for individuals in family provision claims. This means if you are not successful you will not be charged for our costs incurred in litigating the claim. However, if you are not successful in your claim you may be order to pay the executor’s costs. It is therefore important you seek legal advice as to the merits of any claim before commencing proceedings.
If you are the executor of a Will where a family provision claim has been made you are entitled to have the cost of defending the claim paid by the estate. Read more…
Contesting a will and challenging a will have very different meanings.
A will is contested when someone believes that they have not received adequate provisions or fair treatment from the deceased’s estate. This does not mean they believe the will was not valid. The process is often referred to as a family provisions claim.
A will is challenged where there is a dispute as to the validity of the entire will itself. To challenge a will is to claim that the will is an unjust representation of the deceased’s interests or has been created in an illegitimate way. A challenge is an appeal for the entire will to be struck out. When this occurs, a prior valid will have effect, or there may be no valid will and the rules of intestacy will apply.
A family provision claim must be filed within 12 months of the date of death. The court has a discretion to extend the time for the commencement of a claim if there is good reason for the delay.
The fact that you received something under a will does not prevent you from bringing a claim contesting a will.
Rather, the crucial issues are whether you (a) are an eligible person (generally a spouse, child, or dependent), and (b) whether you received adequate provision under the will, taking into account all the relevant considerations.
