Contesting A Will – Lawyers & Solicitors
How a family provision claim works
Eligible people can contest a will in New South Wales and make what is called a Family Provision claim if they’ve been left without adequate provision from a deceased estate.
Who is an eligible person?
- former spouse
- de facto partner
- step children
- members of the deceased’s household who were dependent on the deceased
- people in close personal relationships who lived with the diseased
How the court determines adequacy
In determining whether or not you have a right to a share of a deceased estate the court will consider:
- the nature and duration of your relationship with the deceased
- the nature and extent of any obligations or responsibilities owed to you by the deceased (i.e your contribution to the deceased’s welfare, or upkeep of the estate, that was not adequately compensated)
- your current financial position, as well as future needs
- the value of the estate
There is a time limit for contesting a will. In NSW, you have 12 months from the date of death to make such a claim. There are exceptions to this time limit.
What will it cost and who pays?
The judge has discretion to decide who pays legal costs in a family provisions proceeding.
If the applicant loses, the judge may order them to pay the other side’s legal costs. If the applicant wins, the judge usually orders the estate to pay the applicant’s legal fees.
For advice on the strength of your case and likely outcomes contact Alan Rigas Solicitors on (02) 9635 5333 or email us at email@example.com
How do I get a copy of the will?
There are two things to remember when trying to obtain someone’s Last Will and Testament.
Firstly, if the person is still alive you have no right to see it – it is considered private property and no one has the legal right to demand to see a copy.
You can obtain a copy of a deceased person’s will from the executor or the solicitor acting for the estate, but only if you are legally entitled to view it.
Those legally entitled to inspect the will of a deceased person include:
- anyone named or referred to in the will or a previous will
- a beneficiary
- a surviving spouse or de facto partner
- the parent or guardian of the deceased
- anyone who may have a claim against the estate of the deceased
- any attorney under an enduring power of attorney made by the deceased person
- anyone committed with the management of the estate under the NSW Trustee and Guardian Act 2009 immediately before the death
- a parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate if no will exists
If the executor of the estate has lodged an application for a Grant of Probate with the NSW Supreme Court you can apply for a copy. There is a fee for this service.
The Probate Registry of the Supreme Court keeps an index that is searchable by the general public.
There is no will
While dying without a will won’t necessarily mean your assets go to the government it does complicate matters considerably and the costs of establishing your rightful beneficiaries would most likely be taken from your estate.
A person who dies without leaving a will is said to have died intestate, and the estate passes to the next of kin according to a special statutory order – typically their spouse or partner, children, parents, or other relatives.
The court appoints an administrator to distribute the estate of the deceased. A family provisions claim against the deceased’s estate can still be made if a will has not been created.
The most obvious disadvantage of intestacy is that the deceased has no control over the distribution of the estate, which must be distributed among the deceased’s nearest blood relatives whether they were close to the deceased or not.
This also occurs when the deceased leaves a will that only distributes part of the estate (partially intestate) or where a will is made but for some reason is ineffective. In this case letters of administration must be applied for.
Contesting a will
The validity of a will can be challenged if you think:
- the deceased lacked mental capacity to make a will
- the will was forged
- the deceased was unduly influenced in making the will
- there was fraud involved
- the deceased was subject to force, fear, pressure or trickery when making their will.
Executor’s duty to defend the will
If you are the executor of an estate that has a family provisions claim made against it you are duty bound to defend against the claim or negotiate with the applicant. Stop distributing the assets of the estate as soon as you receive notice of an intended claim. If a distribution is made and it transpires that there are insufficient assets in the estate to satisfy an order made by the court in favour of a successful plaintiff, the executor may become personally liable to cover the short-fall. Costs may also be awarded against the executor.
Interim order to stop the estate being distributed
The court may make an interim family provision order before it has fully considered an application to stop an estate from being distributed, in part or fully, pending its final determination.
Mediation is helpful in narrowing the areas of dispute between parties and the majority of cases are resolved at mediation.
Mediation is an informal process where the parties’ legal representatives make short opening statements to the mediator explaining their position. The mediator then speaks to each of the parties to explain the purpose of the mediation, the costs involved in proceeding to a hearing before a judge, and generally encourages the parties to try and resolve this matter at the mediation. The parties then move into different conference rooms and offers of settlement are exchanged through the mediator until the matter is resolved or the parties decide to terminate the mediation.
If the matter does not settle at mediation, the registrar will re-list it before the court to allocate a hearing date before a judge.
Notional estate orders
New South Wales is one of the few states in Australia that allows a Family Provisions claimant to draw properties previously distributed by the deceased before they died, or after they passed, into consideration in the bulk asset. This increases the value of the estate and in some cases allows a claimant to claim on assets that otherwise would have not formed part of the estate.
The court can designate property as notional estate in instances where the deceased:
- gave an asset away or sold it to someone for less than its value within three years of death
- had superannuation or life insurance
- held an asset (such as a house or bank account) jointly with another person
- made a loan to someone and forgave the loan on their death, or within three years of their death.