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Contesting a Will in New South Wales

In NSW contesting a will involves applying for a family provision order.  The wills and estates lawyers at Brander Smith McKnight are highly experienced in this process and can help you navigate legal complexities and advise you of your rights and the requirements that need to be met. For instance, the law requires you to initially attempt to resolve the issue through mediation.  The capable lawyers at BSM can represent you and succinctly and persuasively advocate for you.

The Process involved in Contesting a Will

People who wish to contest a deceased person’s will need to apply to the court for a family provision order.  Family provision orders allow people to contest the will of a deceased person where they believe it does not adequately provide for them or has unfairly excluded them.

Family provision orders allow the court to provide a successful applicant with an appropriate portion of the deceased person’s estate.  The details and nature of a family provision order and by the court will vary from case to case. For example, it is for the court to determine the portion of the estate the applicant is entitled to, how many payments will be made to the applicant and whether any conditions apply to the order.

Who is Eligible to Contest a Will

Only certain people are allowed to apply for family provision claims.  In general terms these people include:

  • The deceased person’s spouse at the time of death
  • The deceased’s de facto partner
  • The deceased’s child
  • The deceased’s grandchild (if they were financially dependent on the deceased).  For more information on grandchildren contesting a will see the article on can grandchildren can challenge a will.
  • The deceased’s former spouse
  • People in a close personal relationship with the deceased
  • People who lived with the deceased before they died
  • People who lived in a close personal relationship with deceased when they died.

The exhaustive eligibility requirements for family provisions orders are outlined in section 57 of the Succession Act 2006 (NSW).

Is there a Time Limit to Contesting a Will

It should be noted that there are time limits for making applications for family provision orders.  Applications must be made within 12 months of the deceased person’s death (section 58 Succession Act 2006 (NSW)).  Where an application is not made in time, the court may still allow it if the applicant shows sufficient cause to justify the application being late.  Alternatively, an exception to the time limit applies where the parties to the proceedings consent to the application being made out of time.  That is, all parties agree to the time exception.

Making Family Provision Orders

When deciding whether to grant a family provision order and allow the will to be successfully contested, the court must decide whether the deceased’s will adequately provides for the “maintenance, education or advancement in life” of a person eligible to apply for the order.  Accordingly, the court will consider various factors when deciding whether to make a family provision order.  These include:

  • the relationship between the applicant and the deceased person
  • the obligations or responsibilities owed to the deceased person or other relevant parties
  • the characteristics of the deceased person’s state
  • the financial resources and financial needs of the applicant and other relevant parties
  • the financial circumstances of any person cohabitating with the applicant
  • the physical, intellectual or mental disability of the applicant and other relevant parties
  • the age of the applicant
  • contributions made by the applicant to the deceased person’s estate, welfare or  family
  • any matters which the court considers to be relevant

For the exhaustive list of considerations, please see section 60 of the Succession Act 2006 (NSW).

Mediation

When a person wishes to contest the will they must first try to resolve the issue through mediation. This is set out in s98 of the Succession Act 2006 (NSW).  In mediation the relevant parties attempt to negotiate an agreement regarding the contents.  Following mediation, the court can give legal effect to an agreement reached between the parties.  Mediation will only not be compulsory where special reasons justify the court not referring the matter to mediation.  The lawyers at Brander Smith McKnight are happy to represent you during mediation.  We consult with you prior to the mediation, and advocate on your behalf, presenting your position in a professional and persuasive manner.

Who can Access a Deceased Person’s Will?

When considering the matters relevant to contesting a will, it is important to note the people who can legally access a deceased person’s will in NSW.  Section 54 of the Succession Act 2006 (NSW) defines the people who are entitled to access a deceased person’s will.  They include

  • any person named or referred to in the will, whether as a beneficiary or not
  • any person named or referred to in an earlier will as a beneficiary of the deceased person
  • a parent or guardian of the deceased person
  • the surviving spouse, de factor partner or issue of the deceased person
  • any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate, that is, without a will.
  • any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator (the person who has made the will) if the testator had died intestate
  • any person, including a creditor, who has or may have a claim at law or in equity against the estate of the deceased person
  • any person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act (2009) immediately before the death of the deceased person
  • any attorney under an enduring power of attorney made by the deceased person
  • any person belonging to a class of persons prescribed by the regulations

The wills and estates lawyers at Brander Smith McKnight are experienced in contesting a will.  The friendly team are happy to provide advise and assistance guiding you through the legal complexities of family provision orders.  Our capable lawyers will listen to your issues, formulate a plan and succinctly and persuasively advocate for you.  We are happy to represent you during all phases of negotiation and mediation and if required, litigation.

We have offices in Sutherland, Parramatta, Wollongong and Sydney CBD.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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