If you’ve been left out of a will when you expected to benefit or if you were a beneficiary but didn’t receive adequate provision in a will, you can contest it under the Succession Act in New South Wales, if you are deemed an eligible person. If you were named or referred to in an earlier will, whether as a beneficiary or not, but you were left out of the latest will you can dispute it. If you are an “eligible person” then you have legal standing to contest a will.
Eligible Persons Under the Succession Act
The Family Provision Act 1982 was amended and replaced by the Succession Amendment (Family Provision) Act 2008 (NSW) and actioned in March 2009. The amendments ensure adequate provision for eligible persons whether there was a will or not and whether the eligible person was mentioned or not.
If you are deemed eligible by the court, you have legal standing to contest a will under the Succession Act for a Family Provision Order. People now often live in more complicated family structures but the court recognises them.
If you are an eligible person with legal standing, you can apply for family provision orders and to make a family provision claim:
- If you were a spouse of the deceased person before their death.
- If you were part of the deceased’s household, living in a close personal relationship, or as a de facto with the deceased person when they died.
- If you were a child of the deceased person wholly or partly dependent on the deceased.
- If you were a grandchild wholly or partly dependent on the deceased person.
- Also, former spouses of the deceased person at the time of their death can make family provision claims.
Viewing the Will Before Probate is Granted
A Grant of Probate means the executor of the will can disperse the assets of the estate to the beneficiaries. People who have legal standing and are eligible to apply to the court to view the will before Probate proceedings are processed include:
- Anyone named or referred to or not in the will or an earlier version of the will as a beneficiary.
- The deceased person’s parent or guardian.
- A husband or wife, de facto partners (same sex or not) or the deceased person’s children.
- If the deceased person died intestate then anyone who would be entitled to a share of the estate.
- Anyone (including creditors) with a claim against the deceased person’s estate.
Family Provision Claims and the Process of Contesting a Will
A Family Provision claim is made to the Supreme Court. It’s advisable to seek legal advice before claiming so your lawyer can help you write an affidavit and to file a summons. The summons sets out what you seek to receive from the deceased person’s estate.
If the probate is yet to be granted, you can file a probate caveat. In this case, the court won’t grant it until all parties agree to remove the caveat or the court makes an order. Unless all parties can agree, one party may begin court proceedings by filing a Statement of Claim in the court setting out why the will is allegedly invalid. The judge can then determine the validity of the will and who pays legal costs.
Always seek legal advice before commencing a legal challenge.
Reasons For Disputing a Will in NSW
If you were in a close personal relationship with the deceased or a person with legal standing belonging to the eligibility category, you can challenge a will in the Supreme Court. Common challenges occur when someone believes the will isn’t legally valid, isn’t the most recent will, has been tampered with or made under duress or undue influence or doesn’t reflect the will-maker’s intentions (isn’t clear). An example of clarity is if the will-maker leaves something to a grandson named James when there are two grandsons with that Christian name. Family members may believe de facto partners of deceased persons have no right to contest a will, but this is wrong.
If you are an eligible person, you can contest the will if you believe there was suspected forgery or fraud, if the will-maker lacked testamentary capacity, did not make it their own free will, or was subjected to undue influence. Other reasons include beneficiaries believing the document is not characteristic of the deceased, was drawn up under suspicious circumstances, or the person was tricked into writing another will.
The Time Limit For Contesting a Will Apply in NSW
In NSW, you have 12 months from the date of death to lodge a Family Provision claim or to dispute a will in court. In other states there are different rules and the time limit, so contact a lawyer to find out where you stand concerning contesting a will.
Contact the NSW Wills & Estate Disputes Helpline
If you are concerned about a loved one’s will and need to dispute it, call us today to apply for a family provision order. If you wish to draw up a will with an experienced Succession Act lawyer who will ensure your intentions are clear, call us. Our lawyers are will dispute experts so don’t hesitate to contact us today at 1300 679 222, email willscontesting@gmail.com, or fill in the online enquiry form here and we’ll get back to you immediately.
