In NSW if you are an eligible person who has been left out of a Will or not properly provided for, you can challenge the Will.
You are an eligible person if you are:
- a spouse
- de-facto (including same sex partner),
- child (including adopted child),
- former spouse
- a person who was, at any particular time, wholly or partially dependant who is a grandchild or was a member of the deceased’s household or
- a person the deceased was living in a close personal relationship at the time of death.
If you are an eligible person than you can challenge the will by making a claim in the Supreme Court of New South Wales under the provisions of the <em>Succession Act 2006</em> (NSW). A claim must be commenced within 12 months of the date of the deceased’s death unless the Court otherwise allows.
To succeed in a claim, you must show that you have not received provision for your proper maintenance, education or advancement of life. Your case will be determined on its facts. A Court will, in determining the matter, consider the following:
The adequacy of 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 financial circumstances including your financial resources and earning capacity.
- The size of the estate.
- 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.
- Any other matters the court considers relevant.
A claim is made by filing an application in Court along with a detailed Affidavit setting out the circumstances of your case. The estate will respond and file its own evidence and the matter will then be listed for a compulsory mediation. If the matter does not resolve at mediation it will be listed for a hearing. If a matter proceeds to hearing it will likely take between 12 – 18 months to finalise.
If there is no will then the person died intestate and the laws of intestacy apply. You can still bring a claim if you are eligible person and not adequately provided for under the law of intestacy.
You may also be able to dispute a Will if there are questions as to the deceased’s mental capacity at the time the Will was made or 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.
If you have been left out of a Will or you believe you were not adequately provided for then email or call Segelov Taylor on 02 8880 0500. We can assist by providing advice and acting for you on a ‘no win no fee’ basis.