After a loved one passes away, it can be a deeply distressing and emotional time. In these circumstances, the prospect of contesting a will can be a very emotionally draining experience. However, if you feel that you have not been adequately provided for in a will, delay can prevent you from making a claim. This is because, in NSW, if you wish to contest the provisions of a will (known as a ‘Family Provision Claim’), you only have 12 months to from the date of the deceased’s death. Beyond this time a claim a can only be commenced with the permission of the Court.
The time limits are different in other states.
Are you an Eligible Person?
In order to start a Family Provision Claim you must be an “eligible person”. In New South Wales an eligible person is defined by section 57 of the Succession Act as:
• a spouse;
• a de-facto partner (including a same-sex partner);
• a former spouse;
• a child (including an adopted child);
• A grandchild of the deceased, who was at a particular time wholly or partly dependent on the deceased or else was a member of the deceased’s household at any time; or
• any other person who was living in a close personal relationship with at the time of death.
How do I Commence a Claim and what Factors does the Court consider?
A claim is commenced by filing a summons and supporting affidavit in the Supreme Court. The claim will be determined on the facts and you must show that there has not been adequate provision for your maintenance, education or advancement. The Court will consider a range of factors including: your relationship with the deceased, the size of the estate, and your financial circumstances. This includes your assets and your earning capacity, and the financial circumstances of other beneficiaries and eligible persons.
The court will also consider whether any provisions were made for you by the deceased in their lifetime, whether you provided any financial or non-financial support to the deceased, as well as the adequacy of any provision in the will made for your maintenance, education or advance, and any other matters the court considers relevant.
You will be required to file sworn statements (affidavits) setting out all your relevant circumstances and need. The estate will file corresponding evidence, including concerning other beneficiaries. Almost all matters are subject to compulsory mediation to see if they can be settled. Most cases resolve at mediation If your case does not resolve, it will come back before the court and a hearing date will be appointed. This is normally within 12 months of your claim being started.
Are there any Other Options?
Depending on the circumstances of your case, you may also consider ‘challenging’ the will. You should pursue this option if your primary concern is that the last will was invalid.
Situations where a will may be invalid include where the deceased did not have the mental capacity to know what they were doing at the time of writing the will, the deceased was under duress, there was fraud involved in writing the will, the deceased was under undue influence from another person, or the will is a forgery. If you believe that any of the above may apply to a will that you have an interest in, please contact us today. We will provide you with expert advice regarding your most appropriate legal option.
Segelov Taylor Lawyers Can Help
Segelov Taylor has extensive experience in contesting and challenging wills. We can provide guidance, advice and representation on any wills matter you require assistance with. If you think you may be entitled to contest a will get in touch by email: david@segelovtaylor.com.au or by phone: (02) 8880 0500