Can a Beneficiary Contest a Will?

A beneficiary can contest a will in New South Wales on the ground that the testator did not make adequate provision for them, but only if they belong to one of the categories of eligible persons. These claims are known as Family Provision Claims and are authorised by the Succession Act 2006. This article outlines the time limits for Family Provision Claims in NSW, as well as the eligibility requirements, and set out how the courts usually evaluate such claims.

Which Beneficiaries Can Contest A Will?

A Family Provision Claim can only be lodged in NSW if the testator was living in NSW before their death or if they owned real estate in NSW.

A beneficiary can contest a will if they were:

  • The testator’s spouse when they died;
  • The testator’s de facto partner when they died;
  • A child of the testator;
  • A former spouse of the testator;
  • Were partly or wholly dependent on the testator and lived in the same household as them;
  • A grandchild if they were financially dependent on the testator;
  • A person who had a “close personal relationship” with the testator and lived with them at the time of death.

Several of these terms, specifically “de facto” and “close personal relationship”, have specific meanings in family law.

De Facto

The Interpretation Act 1987 defines de facto partners as members of a couple who are living together in a relationship but who are not married or related. De facto relationships include couples whose relationships are not registered, couples whose relationships are registered in NSW, and interstate registered relationships.

Close Personal Relationship

The Succession Act 2006 defines a close personal relationship as a connection, separate from a relationship or marriage, between two adults who are living together, and one party provides personal care and domestic support to the other. This includes adults – family members or others – but not persons who provide a caring service for a monetary reward or on behalf of a charity.

How is Adequate Provision Determined?

A beneficiary can contest a will on the basis that the testator did not adequately provide for them. The courts may consider any factors when assessing whether a person received adequate provision. The main consideration is all the beneficaries’ financial circumstances, especially those of the person making the claim. The court will also consider the relationship between the testator and the claimant, whether the deceased made financial promises to the claimant, and any emotional or financial support that the beneficiary gave to the deceased. The court will also consider whether the beneficiary previously made contributions to the deceased’s assets of the deceased, such as working in a family business. Other considerations are the beneficiary’s health and age, and their usual standard of living.

Time Limits For A Beneficiary To Contest A Will

A beneficiary must contest a will within set time frames in New South Wales. The beneficiary needs to give the executor written notice within six months of the testator’s death that they intend to contest the will. Although it is possible to lodge an application after that period has elapsed, the executor will have already started to distribute the estate and it will be extremely hard to recoup the assets of the estate.

The beneficiary must apply to the court within a year of the testator’s death. The courts may hear a late application contesting a will, but only if all the parties consent to this. The court will assess the timing of the application in relation to the testator’s death, the beneficiary’s explanation for the lateness, and whether the estate has already been distributed.

Who Pays When A Beneficiary Contests A Will?

In NSW, the court determines whether a beneficiary will pay the fees associated with contesting a will. The usual practice is that the estate reimburses the claimant for the costs of contesting the will if the claim is successful. If the claim is unsuccessful, the court can order the beneficiary to pay the estate’s costs in defending the action.

The first step for a beneficiary who is thinking of contesting a will is to get a copy of the will. Any person who is eligible to contest a will can seek a copy of the will from the deceased’s solicitor or from the executor. If there is a problem getting a copy of the will, then a solicitor can help by communicating with the other parties, or by commencing court proceedings. 

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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