In Australia each state has a different set of rules which apply when contesting a Will, so it is exceptionally important that if you intend on contesting a will, you do it in your state. In NSW eligible persons can contest a will by applying to the Supreme Court for a Family Provision Claim if they have been omitted from the will or left without adequate provision from a deceased estate.
As noted above, in order to be able to make a claim you must be an ‘eligible person’ as listed in Section 57 of the Succession Act 2006 (NSW) such persons being:
a. A person who was the spouse or defacto partner of the deceased person at the time of the deceased persons death;
b. A child of the deceased person;
c. A former spouse of the deceased person;
d. A person:
i. who was, at any particular time, wholly or partly dependent on the deceased person; and
ii.who is a grandchild of the decease or was a member of the household of which the deceased person was a member;
e. A person with whom the deceased person was living in a close personal relationship at the time of the deceased’s death.
Whilst a parent, sibling, step-child and former de-facto spouse isn’t expressly listed as an eligible person, this doesn’t mean they cannot make a claim and they may be eligible under category (e).
In addition to being an eligible person, it is imperative that any Family Provision Claim is brought within 12 months of the date of the death of the deceased, or within a reasonable amount of time if the date of death is unknown. There are some exceptions made as to why a matter can proceed out of time, however sufficient cause must be shown and it is at the discretion of the Court as to whether this is accepted.
When it comes to the costs involved in this process, it is important to note that the Judge has discretion regarding such costs and that there may be occasions when the Applicants costs are paid from the Estate if there is a provision made for the Applicant. If the Applicant is unsuccessful there may be cost consequences such as bearing own costs or paying the Estates costs.
It is necessary to note that when it comes to Family Provision Claims, it is a ‘needs based’ jurisdiction meaning that any Applicants must show that they are in need of a provision of the will or a larger provision from the estate. There are numerous further considerations which effect each individual matter including nature of relationship, financial circumstances of applicant and dependency.
It is important to note that the Court only intervenes by way of Family Provision Claims as far as they are required to. It is common law that if a testator has full capacity at the time of making a Will, such decisions should be respected.