A claim may be made in NSW if either:
- There is real estate owned by the deceased and situated in NSW; and/or
- The deceased was living permanently in NSW at the date of their death and owned property anywhere.
Who May Claim? Can family members contest a will?
In order to claim you must be an eligible person.
Section 57(1) of the Succession Act 2006 (NSW) defines “eligible persons” as follows:
- The spouse (wife or husband) of the deceased at the time of death;
- A person in a de-facto relationship with the deceased at the time of death (this includes same sex relationships);
- The child of the deceased;
- The former wife or husband of the deceased;
- A grandchild or member of the household of the deceased who was at some time dependent (wholly or partly but not just an emotional dependency) on the deceased;
- A person with whom the deceased was in a close personal relationship at the time of death (two adults that cohabitate and provide each other with domestic support and personal care, without fee or as a volunteer on behalf of a charitable or like organization);
Can I Get a Copy of the Deceased’s Will?
Section 54(2) of the Succession Act 2006 (NSW) states that the following persons are entitled to inspect a Will of the deceased:
- A person named or referred to in the Will;
- A person named or referred to in an earlier Will as a beneficiary;
- The surviving spouse, de-facto or issue;
- The parent or guardian of the deceased;
- A person entitled to a share of the estate had the deceased died intestate;
- A parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate had the deceased died intestate;
- A person/creditor who may have a claim against the deceased;
- A person with management of the deceased’s personal estate immediately before their death;
- An attorney under the deceased’s enduring power of attorney;
- A person belonging to a class of persons prescribed by regulations.
How Long Do I have to make a Family Provision Claim?
Generally you have 12 months from the date of death to make your claim. In some circumstances the Court will allow an application after the 12 months of the deceased’s death.
What are the grounds for contesting a will & What Does the Court Consider When Deciding a Claim?
Firstly pursuant to s.60(1) of the Succession Act 2006 (NSW) the Court will determine:
- If the applicant is an eligible person; and
- Whether to make a family provisions order and the nature of any such order.
Secondly. if s.60(1) requirements are met the Court pursuant to s.60(2) of the Succession Act 2006 (NSW) will take the following evidence into consideration:
- Any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
- The nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
- The nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
- The financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
- If the applicant is cohabiting with another person–the financial circumstances of the other person,
- Any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
- The age of the applicant when the application is being considered,
- Any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
- Any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,
- Any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
- Whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
- Whether any other person is liable to support the applicant,
- The character and conduct of the applicant before and after the date of the death of the deceased person,
- The conduct of any other person before and after the date of the death of the deceased person,
- Any relevant Aboriginal or Torres Strait Islander customary law,
- Any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.
Is it expensive to contest a will? Who Pays the Legal Costs?
Legal costs in family provision cases are at the discretion of the judge however if an order for provision is made for a claimant the claimant’s costs will be paid out of the estate.
If however the claimant’s case is rejected and no order is made in his or her favour he or she may be ordered to pay the costs of the executor defending the proceedings.