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Nine Things You Need to Know About Contesting a Will

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Contesting a Will can add more uncertainty to an already difficult time. It is also a topic around which there is a lot of confusion. When thinking about whether to contest a Will, there are a lot of things you need to be aware of if you are to be successful. Here we outline some important things you should keep in mind.

1. Contesting and challenging a Will are not quite the same

Challenging a Will is to dispute its validity. Such cases often arise when the Will-maker was not competent to make a Will, or they were pressured into change their Will. Some people may believe a Will has been tampered with or that there is a later Will.

Contesting a Will, on the other hand, questions the fairness of a Will. If you have been left out of a Will or consider that you have been unfairly treated you may wish to contest its terms with a family provision claim.

2. To contest a Will, you need to have "eligibility"

In NSW, the categories of persons eligible to make an application for a family provision claim are set out in the Succession Act 2006. These include (but are not limited to):

  • The deceased's spouse;
  • A former spouse;
  • A de facto spouse;
  • Children;
  • Persons wholly or partially dependent on the deceased at a particular time;
  • A person who was living in a close personal relationship with the deceased at the time of death, such as a non-remunerated carer.

Grandchildren may also be able to make a claim in certain circumstances even though, as a general rule, it is recognised that a grandparent does not have a responsibility to make provision for a grandchild. The grandchild would have to show that the deceased grandparent directly supported them financially on a regular and consistent basis (not just gifts of money or incidental assistance) and that they were wholly or partially dependent on the grandparent at a particular stage of their life.

3. I am eligible, so what happens next?

As well as being eligible, to be successful in a claim, you will have to satisfy a Court that you have not received "adequate provision" for the proper maintenance, education and advancement of your life in the deceased's Will. Each case is considered on its merits and on the specific facts.

You will need to file a summons and supporting affidavit in the NSW Supreme Court. It is not required in NSW that Probate or Letters of Administration be granted before bringing a claim.

4. The meaning of adequate and proper?

The words adequate and proper are common to all Australian jurisdictions. The classic interpretation of these words can be found in Bosch v Perpetual Trustee Co Ltd (1938):

The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. 

A father with a large family and a small fortune can often only afford to leave each of his children a small insufficient sum for his 'adequate' maintenance. Nevertheless, such a sum cannot be described not providing for his 'proper' maintenance, taking into account all the circumstances of the case.

This case refers to a particular set of circumstances. However, it is more widely interpreted to mean what is adequate has to be relative to the applicant's needs but also to the capacity for meeting them.

The phrase 'advancement in life' can also have a broad meaning and application.

In effect, there are no hard and fast rules on how much you may receive from a contested Will claim. The Court's approach is to apply these terms in a relative sense in the context of all the circumstances.

5. What the Court will consider

In determining a claim, the Court will consider various factors, including:

  • the adequacy of any provision for your maintenance, education and advancement of life;
  • the nature and duration of your relationship with the deceased;
  • the circumstances of other eligible persons or beneficiaries;
  • your personal circumstances which can include your financial resources, earning capacity, and your health;
  • the nature and duration of your relationship with the deceased;
  • what contributions, financial and otherwise, you made to the deceased in their lifetime;
  • the size of the estate;
  • any other matters the Court considers relevant.

For example, the age of the applicant can be an important factor as needs at various stages in life can vary considerably.

6. Not all assets are part of the Will so may not be available as part of the claim

Some assets are not legally owned by the deceased. This can include such assets as those that are jointly owned.

On the other hand, in NSW, the concept of "notional estate" can apply. If there is insufficient money or property in the actual estate, then assets "out of the estate" (e.g. superannuation) can be made available at the discretion of the Court.

7. Time Limits apply

In NSW a family provision claim must be made within 12 months from the date of death. However, exceptions can be made in certain circumstances if there is "sufficient cause" for making a late application. The Court has the discretion to grant an extension if it accepts the explanation, so even if the limit has been exceeded, it is worth discussing with us as to the reasons for the delay.

8. The costs of contesting a Will

The Court has considerable discretion when it comes to legal costs in family provision cases. If an order is made for provision for an applicant, the estate will normally meet their costs. Where an application is unsuccessful, the Court may order the applicant to pay the executor's costs of defending proceedings.

9. The importance of specialist advice

 If you are considering contesting a Will, for all the reasons outlined, it is highly recommended that you seek expert legal advice from the specialist lawyers at Szabo & Associates on the strength of your case and the likely outcome.

Contact our Wills and Estate Planning Lawyers in Sydney, NSW

Szabo & Associates Solicitors are experts in the preparation, challenging, contesting or in defending a Will. Please call us on 02 9281 5088 or fill in the online contact form.

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