These are some answers to common questions asked when contesting or disputing a Will in NSW. If you intend on disputing or contesting a Will, you should seek proper legal advice relevant to your situation. The information here is provided for information purposes only.
What is contesting, disputing or challenging a Will in NSW?
When you challenge, contest or dispute (contest) a Will in NSW, you are claiming that the deceased (person who died) did not make adequate provision in their Will for you on their death. In other words, that they should have provided for you in their Will, yet failed to do so, which is unfair in the circumstances.
This is known as a Family Provision Claim, and can only be made in certain circumstances.
What are the grounds for contesting or disputing a Will?
In NSW, to contest or dispute a Will and make a Family Provision claim, you need to be an ‘eligible person’ (see below).
The grounds to challenge a Will can be based upon a number of factors including:
- If the Will is grossly unfair;
- There are eligible person(s) who have proper financial needs;
- There are dependants who are partially or fully dependant on the deceased and were not adequately provided for or;
- The testator lacked the mental capacity at the time of making the Will.
How long do I have to contest or dispute a Will?
In NSW, as well as other states, there are strict time limits to make a family provision claim. Generally, a family provision claim should be filed within 12 months of the date of death of the deceased.
If the time limit has lapsed, it can be very difficult to progress any claim you potentially have as you need to seek the Court’s permission to allow you to bring your claim out of time. The Court normally only allows a claim to be filed out of time if you have a very good reason for the delay.
It is therefore important to seek urgent legal advice if you think you are close to the time limit, or if it has passed.
Who can contest or dispute a Will in NSW (eligible persons)?
In NSW to make a claim, you must be an eligible person.
Eligible persons are listed in section 57 of the Succession Act 2006 (NSW) and are listed below:
- The deceased’s spouse at the time of death;
- A person who was living in a de facto relationship with the deceased at the time of death;
- The deceased’s child;
- The deceased’s former spouse;
- A person was fully or partly dependent on the deceased at a particular time;
- A grandchild of the deceased or a member of the household of the deceased;
- A person who lived in a close personal relationship with the deceased at the time of death. An example of this is when two adult persons live together and provided care and domestic support to each other without receiving payment or providing the care and support by volunteering for a charity.
Can I claim assets which do not form part of the deceased’s estate?
In some circumstances, you may be able to claim assets which do not, strictly speaking, fall into the deceased’s estate. In such cases, the assets are known as Notable Estate.
Some examples of Notable Estate include:
- The deceased gave an asset away, or, alternatively, sold it to someone for less than its value within 3 years of their death;
- Superannuation or life insurance
- Assets such as a house or bank account held jointly with another person
- The deceased made a loan to someone and forgave such loan on their death or within 3 years of their death.
How do I get a copy of a Will in NSW?
It is common that people do not know if they have been included in the deceased person’s Will. The first thing you should do is contact the executor or the solicitor acting for the estate. An executor is a person responsible for administrating the deceased’s estate.
In NSW, under section 54 (2) of the Succession Act 2006 (NSW) the following persons are entitled to inspect or be provided a copy of the deceased’s Will:
- A person named or referred to in the Will;
- Any person named or referred to in an earlier Will as a beneficiary;
- A surviving spouse de facto or issue;
- The parent or guardian of the deceased;
- Any person entitled to a share of the deceased has died interstate;
- Any parent or guardian of a minor referred to in a Will or who would be entitled to a share if the deceased died interstate;
- Any person or creditor who may have a claim against the deceased;
- Any person with management of the deceased’s personal estate immediately before death;
- An attorney under the deceased’s Enduring Power of Attorney;
- Any person belonging to a class of person’s prescribed by Regulations.
If you are having trouble obtaining a copy of the Will, our lawyers can consult with the executor of the estate or their lawyers and obtain a copy for you. If the deceased left no Will it is said they died intestate and an Application for Letters of Administration is made with the Court.
What factors does the Court consider when determining a family provision claim?
In NSW, the Court takes various matters into consideration in determining whether to make a Family Provision Order. As there are a number of factors involved, it is important to seek advice early from a lawyer who can guide you through the process and answer any questions you might have.
Section 60 (2) of the Succession Act 2006, sets out the evidence that a Court may consider in determining a claim, these include:
- The relationship between the deceased and the Applicant, if any, including the duration;
- The nature and extent of the deceased’s Estate including property which id Notional Estate and Estate liabilities;
- The obligations of or the responsibilities the deceased had (if any) to the Applicant or any other beneficiaries names in the Will;
- The Applicant’s financial resources including earning capacity and needs both present and in the future and those of any other potential application or beneficiary named in the Will;
- The Financial circumstances of any other person co-habitating with the Applicant;
- The Applicant’s age at the time Application is being heard;
- The Applicant’s contribution (if any) to the deceased’s welfare or to the acquisition conservation and improvement of the deceased’s Estate for which adequate consideration was not received by the Applicant;
- Any disability whether physical or intellectual, mental or otherwise of the Applicant, any other Applicant and any beneficiary named in the Will;
- Any provision made by the deceased to the Applicant during the deceased’s lifetime;
- Evidence of the deceased’s testamentary intentions including evidence of any statements made by the deceased;
- Whether anyone else is liable to support the Applicant;
- Whether the deceased maintained the Applicant wholly or partly before his or her death and the extent and basis upon which the deceased di so;
- The conduct of any person before and after the deceased’s death;
- Any other matters the Court considers relevant depending on the circumstances.
How much will I get when I contest a Will or make a family provision claim?
You cannot know from the outset how much you will receive if you dispute a Will and make a Family Provision Claim. There are a number of factors that the Court will look at to make sure whether you have received an adequate provision. In determining whether you received adequate provision, the Court will have regard to money needed for proper maintenance support, education and advancement in your life.
What happens if the Will is not valid?
The validity of a Will can be challenged if you think:
- The deceased did not have the mental capacity to make the Will;
- The Will was forged;
- The deceased was unduly influenced in making the Will or;
- There is an allegation of fraud.
Dying without a Will (intestacy)
When a person dies without a Will, they are said to have died intestate.
In those circumstances where a person has died without leaving a Will or cannot be found and an administrator is appointed by the Courts. The Administrator distributes the Estate of the deceased according to the statutory or other intestacy rules. When an Administrator is appointed by the Court, the Court grants that Administrator, Letter of Administration.
Letters of Administration enable the Administrator to act as a representative of the Estate. Once Letters of Administration is granted, the Administrator distributes property in the following order:
- The Spouse or De Facto spouse solely if there are no children
- The Spouse or De Facto spouse and children
- Children Only
- Other relatives
- No relatives
Get in touch with one of our Probate, Estates Administration and Will Dispute Lawyers in Sydney if you have any more questions on contesting or disputing a Will in NSW.