When family, friends, and beneficiaries – all parties -agree the will of a deceased person is valid, things can run smoothly, and the proceeds from the deceased’s estate can be distributed after the grant of probate. But if a family member alleges they were left without adequate provision from the deceased’s estate, things can get stressful for all involved. Anyone who expected to receive more from a will, if deemed an “eligible person”, can approach the court and make a family provision claim for their education, maintenance or general life support or advancement from the deceased’s estate.
Family Provision and “Eligible Persons”
Under the Succession Act 2006 s57, someone the court deems an “eligible person” may apply for a family provision order in NSW.
Briefly:
- The deceased person’s current or former spouse.
- A de facto partner who was dependent on the deceased person.
- The child or grandchild of the deceased person.
- Anyone wholly or partly dependent on the deceased or was part of the deceased’s household.
- A person living in a close personal relationship with the deceased person.
NB. In NSW, family provision claims must be made within 12 months from the date of the will-maker’s death.
Contesting a Will After 12 Months
A family provision claim is, in essence, a contest or legal challenge to a will by a family member or beneficiary. Such claims are for financial provision from the estate if a person has been left out of a will or a claim for further financial provision if what was provided from the deceased’s estate was inadequate.
While the rules for contesting wills in NSW are within 12 months after the deceased’s death, you can make a family provision claim after that time, though few cases are successful. To make a family provision claim out of time, you must prove to the court that there were special reasons for being late. You must also show your delay has not been detrimental to the estate or beneficiaries. It would be virtually impossible to obtain a successful claim if the estate has already been distributed.
What Does the Court Take Into Account?
The rules around family provision claims include an essential factor the court considers: your financial need. Other considerations are your age, character and conduct, the nature of your relationship with the deceased, and any obligations the deceased had to you or any other beneficiaries—the size and nature of the deceased’s property and any liabilities.
Other considerations are as follows:
- Any contribution, financial or not, that you made to the deceased estate.
- Your needs both now and in future, financial resources and earning capacity. Those of any other applicant or beneficiary are also considered.
- If someone is cohabiting with you, their financial circumstances are included.
- If you have a mental, physical or intellectual disability – and that of any other beneficiaries – will be considered.
- Your contribution to the welfare of the deceased.
- If the deceased made any provision from their estate for you in your lifetime.
- If the deceased wholly or partly maintained you before their death and the circumstances of that support.
Who Pays The Court Costs In Family Provision Claims?
Here’s one reason to seek legal advice and be sure about your evidence when making family provision claims and contesting a will – if you are unsuccessful, you may have to pay your own costs and those of the estate. In family provision cases, the claimant’s costs are commonly paid out of the estate if the claimant is successful, which is the general rule. The judge can make whatever orders they see fit, and in some cases, the costs can be capped by the court.
Is Superannuation Part of a Deceased Estate?
In NSW, the law around superannuation in will challenges is complex. Superannuation is deemed a “notional estate” and is always held in the name of a trustee. Therefore, on the date of the will-maker’s death, property not in their name may not be included in the estate. However, in a family provision case, knowledgeable lawyers in court proceedings may be able to convince the court to have the superannuation restored to the estate.
How to Start the Will Contest Process
You can commence a family provision claim on a deceased estate by filing your application in the Supreme Court naming a defendant, generally the estate’s executor or administrator. If there is no administrator or executor, generally speaking, you may be able to nominate the beneficiary who benefits most from the deceased estate. However, it’s strongly recommended that you seek legal advice before you seek a family provision order.
Call the NSW Wills & Estate Disputes Helpline
For honest, expert legal advice about contesting a deceased person’s will, our lawyers at the NSW Will & Estate Disputes Helpline can offer valuable assistance. Our expert estate lawyers can explain the Family Provision Act, court proceedings, and legal costs and help you discover if you are eligible to challenge the will.
Contact the NSW Wills & Estate Disputes Helpline today to discuss legal costs and let us help you resolve your will challenge so you can get on with your life.
