Sometimes, following the death of a loved one, you may be upset about the amount that was left for you in the Will. Or, you may not have been left anything at all, and consider this unfair. In these situations, you may be able to ‘contest’ the Will, otherwise known as making a ‘family provision’ claim.
While the rules for making a family provision claim are similar throughout the country, there are some specific differences in New South Wales (NSW). In this blog post, we set out the requirements for contesting a Will in Sydney (and NSW generally).
What is the difference between ‘contesting’ and ‘challenging’ a Will?
A Will is the formal document which sets out the rules for what should happen to the assets of someone when they die. Many individuals believe that they have total ‘freedom of testation’ – that they have completely free choice in how their assets get distributed on their death. This is a mistake. While the Will is an important legal document, there are various ways in which an individual can question the Will through a court process.
So, what does it mean for a Will to be ‘challenged’ or ‘contested’, and what is the difference? A Will might be contested where an individual accepts that there is a valid Will in place, but they have been left out of the Will, or wish to dispute the amount that they have been left. This is also known as a ‘family provision’ claim, in accordance with the terminology used in the Succession Act 2006 (NSW).
‘Challenging’ a Will, usually means something different than ‘contesting’ a Will. Sometimes it is used as a cover-all term for a will and estate dispute. More often, however, it is the term used for questioning the validity of the Will itself, and its execution. For example, this term is usually used when an individual claims that a Will is fraudulent or was made under undue influence, duress, or a state of mental incapacity.
When can I contest a Will?
The rules for contesting a Will in NSW are set out in the Succession Act 2006. Section 59 of that Act sets out that the court may alter the distribution of property left in a Will if there has not been adequate provision for the proper maintenance, education or advancement in life of an ‘eligible person.’
The definition of an ‘eligible person’ is then set out in section 57 of that Act. Eligible persons are:
- the spouse of the deceased;
- the de facto partner of the deceased;
- a child of the deceased;
- a former spouse of the deceased;
- a person
- who was, at any particular time, wholly or partly dependent on the deceased, and
- who is a grandchild of the deceased or was, at that particular time or at any other time, a member of the household of which the deceased was a member;
- a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.
Before contesting a Will, it is important to consider that the simple fact of being left out of a Will is not, in itself, sufficient for an individual to succeed in court. In addition, the court must be satisfied that ‘adequate provision’ was not made for that individual in the Will.
Is contesting a Will different in NSW than in other states and territories?
Most of the differences in contesting a Will in different jurisdictions relate to variations in court processes. However, there is one significant difference in family provision law in NSW specifically: NSW is the only state to take into account ‘notional estate’ when family provision claims are considered.
What is the ‘notional estate’ rule? This is the rule, only applicable in NSW, which allows the court to ‘claw back’ assets that are not currently in the estate. Even individuals who were considered wealthy can die leaving relatively little in their estate. This might happen where the assets have been held in a trust, or the property was owned jointly with another person. Sometimes, this may have been an intentional act on behalf of the individual who made the Will to prevent the re-distribution of assets on their death.
Under this rule, the court is allowed to designate assets that are outside the estate, ‘notional estate’ for the purposes of satisfying a family provision claim. There are various conditions that must be met before the court will use notional estate to satisfy a family provision claim:
- an individual must be successful in their family provision claim;
- there must be insufficient assets in the estate to satisfy the family provision claim;
- the ‘transaction’ relating to that property (such as moving it into a trust), only includes those that occurred within three years of death. The rule can apply equally in the case of acts or omissions;
- before making this designation, the court must consider the importance of not interfering with reasonable expectations that people have in relation to property, substantial justice, and any other matters it considers relevant.
For more information on the notional estates rule generally, see this recent report on introducing such a rule in Tasmania.
What is the court process in NSW?
The most important element of the court process for contesting a Will is the time limit on bringing the claim (generally 12 months from the date of death, though extensions are possible). In other states and territories, this timeframe can be different.
If you intend to bring a claim, you should notify the executor as soon as possible to prevent the premature distribution of assets. Note that a Will can still be contested after ‘probate’: That is after the court has recognised that a Will is ‘proven’ or valid.
There is no precise timing for when the case will be heard by the court, but they generally occur between 1 and 3 years after an application is made. Note that most cases are settled outside of court.
How much will it cost?
If you are contesting the Will, you are generally responsible for both the costs of the application and lawyer fees and costs although in many instances the legal costs are paid out of the estate. These can vary significantly both between lawyers, and depending on the complexity of your case.
How should I begin the process?
If a loved one has passed away, and you are considering contesting the Will, you need to contact a specialist estate litigation lawyer for advice as soon as possible. They can advise you on:
- the likelihood of success;
- the possible costs of pursuing action; and
- the timeframes you need to comply with.
If you consider that a Will does not fairly provide for you, you may be able to contest the Will by making a ‘family provision’ claim under the Succession Act 2006. A special rule applying to family provision claims in NSW means that there may be an increased asset base available for distribution, compared to other states, due to the ‘notional estate’ rule.
For advice on your eligibility and chances of success in contesting a Will, you should get in contact with a specialist will dispute lawyer without delay.