What is the main reason an individual may wish to contest a Will?
 
If a person feels that they have been left out of a Will or have not been provided for properly in the Will of the deceased.

How may a Will be contested in New South Wales?
 
A Will may be contested with the Courts under statutory measures, specifically Chapter 3 (Family Provision) of the Succession Act 2006 (NSW). Under this Act, an individual may make a claim on an estate of a deceased person. One of the following instances must apply in order that a claim may be made:

  • If the deceased was permanently living outside NSW at the date of death, owned real estate in NSW must be an estate asset
  • If the deceased was permanently living in NSW at the date of death

Who can contest a Will?
 
Any eligible person who believes he or she has been left out of the Will of the deceased or have not been provided for properly in the Will regarding maintenance and support.

When may an eligible person contest a Will?
 
An application for a Family Provision Order must be made and filed with the Registry of the Court within 12 months of the date of death of the deceased person. This time limit relates only to deaths that occurred on or after 1 March 2009. If the date of death is uncertain, the Court is responsible for determining a reasonable date. If the time limit has passed, only with leave of the Court which is only given in special circumstances may an applicant be able to make a claim. Such a special circumstances might be that the applicant did not know the deceased had passed away.

Who is considered to be an eligible person?
 
Under the Succession Act 2006 (NSW), Chapter 3 (Family Provision), the following persons are the types of individuals who are eligible to challenge an estate of the deceased:

  • a spouse married to the deceased at the time of death
    • This also includes a de facto partner (including a same sex partner)
  • Children
    • Adopted children are eligible and artificially conceived children are irrefutably presumed to be the children of the woman bearing them provided that her husband or de facto spouse consented (which is irrefutably presumed) to the fertilisation procedure.
    • Stepchildren are eligible only if they can prove that they were dependent on the deceased
  • Grandchildren
    • These individuals must prove to the Court that they were dependent on the deceased. The grandchildren must establish dependency of direct and immediate support from the deceased during their lifetime. Even if the deceased did not make provisions for grandchildren in the Will, they may still make a claim to challenge it. Examples of evidence that are usually unsuccessful in the claim are receiving frequent gifts from the deceased and incidental support.
  • Former spouses
    • In most cases a final property settlement between spouses in matrimonial proceedings will present a late claim against the estate of a former spouse.
  • Persons who were at any time wholly or partly dependent on the deceased and who were members of the same household as the deceased.
  • A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

What are some examples of additional evidence that the Court may consider?
 

  • The size of the estate of the deceased
  • The duration and nature of a relationship with the deceased
  • Obligations or responsibilities the deceased had to the applicant
  • Financial needs and circumstances of the applicant
  • Age of the applicant at the time of the hearing
  • Contributions made by the applicant to improve the estate of the deceased
  • Evidence of statements made by the deceased to the applicant prior to their death

 
What if the Will of the deceased specifically states that a person can receive part of the estate only if they do not challenge it?
 
Even if the deceased had an explicit exception in his or her Will such as “I leave $10,000 to my partner only if he does not challenge my Will,” the statement would be void because ruling from the grave is not permitted by the Courts.

How much of the deceased’s estate may be given to a successful claimant?
 
The Court will determine the amount, depending on the claim, financial position of the estate, and the financial position of the applicant. In addition, if the individual contesting the Will has a disability or illness, the Court might give that person more than what they would give to a non-disabled or successful applicant in good health.

A Word of Caution
 
One key point to contesting a Will, which is not included in the appropriate legislation, is that challenging an estate is not free. However, if you don’t have the proper financial foundation to pay substantial legal costs upfront and if you are successful in your claim, those costs will usually be paid from the estate of the deceased. At Owen Hodge Lawyers we have a ‘No Win, No Fee’ guarantee on estate disputes to give you peace of mind.

Do you believe that you have been left out of a Will or not been provided for in the Will of a deceased person? Are you in search of a law firm that is focused on fighting unfair Wills, achieving results, and protecting your interests? If so, please contact Owen Hodge Lawyers for a free claims assessment on 1800 70 780.

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