Contesting a Will in New South Wales

21 February 2022 in Wills and Estates Law

There are various reasons that people may wish to contest a will.  In NSW contesting a will involves applying for a family provision order.  The highly experienced wills and estates lawyers at Brander Smith McKnight can assist you in contesting a will.

What are Family Provision Orders

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.

Eligibility for Family Provision Orders

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)
• 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).

Time Limits for Family Provision Orders

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”.

Making Family Provision Orders

When deciding whether to grant a family provision order, 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 by applying for a family provision order they must first try to resolve the issue through mediation. (Section 98 Succession Act 2006 (NSW)).  In mediation the relevant parties attempt to negotiate an agreement regarding a family provision order.  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.

Who can Access a 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 (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 and to represent you in mediation.

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

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