Contesting a Will in New South Wales

A person can contest the will of a deceased person in New South Wales by making a family provision claim. This usually occurs when a family member has been left out of a will or feels that they have not been adequately provided for. Family provision claims are made in the Supreme Court. This page deals with contesting a will in New South Wales. 

Who can contest a will?

In New South Wales, a person may contest a will if:

1. They are an eligible person; and
2. They believe they have been left without adequate provision.

In assessing the claim, the court may consider the applicant’s financial position, their relationship with the deceased, the size of the deceased estate and the deceased’s relationship with any other persons who are eligible to make claims. Adequate provision in a deceased estate is complex and difficult to define and varies with every case.

Contesting a will in NSW

In New South Wales, a family provision claim can be made if:

1. The deceased lived in New South Wales at the date of their death and owned assets in the state; or
2. The deceased lived outside of the state but owned assets in New South Wales.

Eligible applicants

The categories of person who are eligible to make a family provision claim from a deceased person’s estate are set out in Section 57 of the Succession Act 2006.

They are:

1. The deceased’s spouse at the time of their death;
2. A person who was in a de-facto relationship with the deceased at the time of their death;
3. The deceased’s former spouse;
4. The deceased’s child;
5. A person who was:
   1. Wholly or partly dependant on the deceased at a particular time; and
   2. A grandchild or a member of the household 
   3. of the deceased;
6. A person who was in a close personal relationship with the deceased when the deceased died. 

Time limits

In New South Wales there is a 12-month time limit for commencing a family provision claim.

However, there are exceptions and in certain cases, out of time applications can be made. When a family provision claim is made after more than 12 months have passed since the date of death, the claimant will need to show the court that they have ‘sufficient cause’ for filing the claim out of time. The court may grant an extension of time if satisfied that there is sufficient cause for making a late application. 

How do I obtain the will?

If you need a copy of a will, you should make contact with the executor or the solicitor acting for the estate to arrange this. In New South Wales, the following persons are entitled to inspect or obtain a copy of a will:

• Any person named in the will;
• Any person named in an earlier will as a beneficiary;
• The surviving spouse, de-facto or issue of the deceased;
• The deceased’s parent or guardian;
• Any person who would be entitled to a share if the deceased died intestate;
• The parent or guardian of a minor named in the will or who would be entitled to a share of the estate if the deceased died intestate;
• Anyone who may have a claim against the deceased;
• Anyone with management of the deceased’s personal estate immediately before their death;
• An attorney under an enduring power of attorney of the deceased;
• Any person who belongs to a class of persons prescribed by regulations.

You should seek legal advice if you are having trouble getting a copy of the will. Your lawyer will be able to consult with the executor or commence court proceedings.

What does the court consider?

Courts consider a range of factors before determining whether to make a family provision order. It is important to seek early legal advice on your unique situation.

Under section 60(2) of the Succession Act 2006, the court may consider evidence of the following matters:

1. The relationship between the deceased and the applicant including its nature and duration;
2. The obligations or responsibilities the deceased had to the applicant or any beneficiaries;
3. The nature and extent of the deceased’s estate including notional estate and any estate liabilities;
4. The applicant’s financial resources (including their earning capacity) and needs and those of any other applicant or beneficiary;
5. The financial circumstances of any other person living with the applicant;
6. Any disability of the applicant or any other applicant or beneficiary at the time of the hearing
7. The applicant’s age;
8. Any contribution the applicant made to the deceased’s welfare or to the deceased’s estate, for which they did not receive adequate consideration;
9. Any provision that the deceased made to the applicant during his/her lifetime or to the deceased’s estate;
10. Evidence of the deceased’s testamentary intentions, including any statements the deceased made;
11. Whether the deceased wholly or partly maintained the applicant before their death and the extent to and basis on which the deceased did so;
12. Whether anyone else is liable to support the applicant;
13. The applicant’s character and conduct;
14. The conduct of any other person;
15. Any Aboriginal or Torres Strait Islander customary law that is relevant;
16. Any other matter that the court considers relevant either at the time of the deceased’s death or at the time of hearing.

Can a grandchild contest a will?

There are a number of factors to consider when a grandchild makes a family provision claim. Firstly, the grandchild must be defined as an eligible person. In other words, they must have been wholly or partly dependent on the deceased at some time in their life (s 57(e) Succession Act 2006).

In the 2012 decision of Sammut v Kleemann [2012] NSWSC 1030, Hallen J expressed general principals for considering a family provision application by a grandchild. These principals included:

• that a grandparent has no obligation or responsibility to make provision for a grandchild;
• that if a grandchild cared for their grandparent, this could give rise to a moral obligation to provide for the grandchild.
• That a grandchild isn’t dependent on a grandparent because they received gifts during the deceased’s lifetime whether those gifts were made regularly or otherwise for the grandchild’s benefit.

Contesting a will when you live interstate

If the deceased person lived in New South Wales and owned assets in New South Wales, a family provision claim can be made against their estate in New South Wales even if the claimant does not live in New South Wales or even in Australia. However, it is important to be represented by a lawyer who is a specialist in the law of the state where the claim is being made.

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