Challenging a Will in NSW

Challenging a Will in NSW

By Kayla Curtis

· Read time: 8 minutes

If you are looking at challenging a will in NSW then you will need to understand the context around making a family provision claim.

The circumstances which can amount to a family member submitting a challenged claim include when someone feels they have not been provided for in the will and / or if a person has been left out of a will completely. 

It is important to understand that contesting a will differs by Australian state and territory, and this article will focus on challenging a will in New South Wales (NSW).

What Is A Family Provision Claim?

A family provision claim is lodged in the Supreme Court of NSW in regard to a share (or a larger share), of a deceased person’s estate. The claim may be brought under NSW so long as the deceased resided and held assets in NSW or if they resided elsewhere but held property in NSW.

Family provisions claims exist on the presumption that where an individual has a moral duty to care for a person and where they cannot do so, the state will step in.

Additionally, when a person submits a family provision claim, the court will look at that person’s contention that they have not received an adequate amount. So essentially, the question turns to the needs of the plaintiff. 

Challenging a will is a routine Wills and Estate legal issue and requires advice from an experienced solicitor.

What is the Statute of limitations?

In NSW, the time limit an applicant has to challenge a will is 12 months from the testor’s date of death. If there is disagreement or confusion as to the exact time of death, the court will determine a “reasonable” date.

If the 12 month time limitation has expired, only the Supreme Court of NSW may grant a late application where the applicant can show “sufficient reason” for the delay. 

What Does The Court Consider when Challenging a Will in NSW?

In NSW, there are various matters the Court will take into consideration when determining to make a family law provision claim.

The Succession Act 2006 (NSW) s60(2), outlines the following evidence the Court may consider when determining the claim:

  1. The applicants age and contribution to the deceased at the time of the claim which can include upkeep, assistance etc, 
  2. The relationship held between the deceased and the applicant, 
  3. The nature and the duration of the relationship, 
  4. The character and conduct of the applicant,
  5. Any obligations the deceased held in respect to the applicant or beneficiaries, 
  6. The deceased’s estate as to the extent and any liabilities,
  7. The applicants and beneficiaries earning capacities, needs and financial resources,   
  8. The financial position of individual residing with the applicant,
  9. The status of the applicants or beneficiaries mental health including any disabilities relating to intellectual, physical, and mental at the time of the claim, 
  10. Any provisions made to the applicant by the deceased during their lifetime,
  11. The deceased testamentary intentions including evidence of such statements made by the deceased, 
  12. The extent of the maintenance provided by the deceased to the applicant prior to their death, 
  13. If there is anyone else who may be liable to support the applicant, 
  14. Customary Indigenous law that may be relevant, 
  15. Any and all other matters the Court may see relevant to the matter. 

Who Can Challenge A Will in NSW?

In NSW, to challenge a will a person: 

  1. Must be an eligible person, and 
  2. May believe they have been left out or inadequately provided for. 

The Court may consider the plaintiff’s circumstances when deciding a family provision claim and may include: 

  1. The financial position, 
  2. The assets size, 
  3. The relationship with the deceased,
  4. The relationships held with the deceased by other people who are eligible. 

To be an eligible person under Section 57 of the Succession Act 2006 (NSW), an individual was:

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

*The above list was extracted from s 57 of the Succession Act 2006 (NSW) 

As shown above, a parent, a former de-facto spouse or a step child are not listed as eligible persons. 

However, under s57(e) of the Succession Act 2006 (NSW) a party challenging a will may be eligible to claim if they lived with the deceased and were dependent on them.

Additionally, under s 57 (e) of the Succession Act 2006 (NSW) a grandchild may be eligible to apply to challenge a will, where they can demonstrate that in one point of time they were partly or wholly dependent on the deceased. 

The Court has considered certain factors when deciding if a grandchild is able to apply for a family provision claim. These factors were discussed in the matter of Sammut v Kleemann [2012] NSWSC, and included: 

  1. There is no presumption that a grandparent should provide for a grandchild out of the estate, 
  2. A grandchild should be provided for out of the grandparent’s estate particularly if it is shown that the grandparent was providing for the welfare and direct responsibility of that grandchild, if the child’s parents were deceased young. 
  3. Gifts do not automatically mean that the child was dependent on the grandparent. There would need to be other circumstances which showed dependency. 

How Do I Get A Copy Of The Will and how do I Challenge it?

Once a person has died, the person who has carriage of the deceased persons will, holds an obligation to provide a copy of any will, including:

  1. Current Wills, 
  2. Draft Wills, 
  3. Revoked Wills copies. 

… to all eligible persons who meet certain criteria. There may be a fee attached to the request for a will depending on who has carriage. 

Challenging the validity of a will requires an eligible individual to reasonably consider: 

  1. The will was forged, 
  2. There was undue influence on the deceased person during the creation of the will, 
  3.  The deceased was incapacitated and/or did not have the mental capacity to create a will, 
  4. Fraud, 
  5. If there was force or pressure in the wills creation, 
  6. Threats and/or fear of safety during the creation of the will. 

What Is “Sufficient Cause” in Challenging A Will in NSW After The Time Limit?

If an applicant wishes to challenge a will after the 12 month limitation period, the Succession Act 2006 (NSW) s58(2) grants the Court the power to extend the limitation period, but only under certain circumstances. In order to extend the claim period, the Court must be satisfied that either: 

  1. All the parties to the claim agree to the time extension, or
  2. The applicant has an acceptable excuse for the later application. 

The Court will consider the following significant factors in determining the extension of time and if it would unfairly prejudice the existing beneficiaries to the estate:

  1. Whether probate has passed, and 
  2. If the assets have been distributed to the beneficiaries.This factor is significant as the beneficiaries may have spent, sold or used the assets in good faith since the passing of probate. 

The above outlines that probate plays an important role in determining the likelihood of a time extension application being successful. However, the Court will rely on its discretion when deciding to grant 

What time length can you expect when contesting a will in NSW?

To understand the time length it takes to challenge a will, will depend on if the matter is escalated to a court hearing. 

Solicitors will endeavour to negotiate a settlement with the executor before it proceeds to a court matter. This may enable a resolution to be reached within a matter of weeks, however if an agreement is not reached, the next step is to lodge the relevant documents to the courts to begin proceedings.

It is expected that the applicant should expect this stage to take roughly 5-6 months before they are then referred out to participate in a mediation session. Should the applicant and the executor not reach agreement at mediation, a Family Provision Claim may take up to 12 to 18 months to be decided in the Court.

Conclusion

In conclusion, here are a variety of reasons why an individual may lodge a family provision claim to have a will challenged.

For an individual to challenge a will in NSW they must have been dependent on the deceased during their lifetime, reasonably consider a negative event occurred during the creation of the will, and commence the claim within 12 months since the deceased’s death.

Additionally, the Court considers various circumstances when deciding if the claim should be successful. Before initiating Court proceedings, the matter should benefit from mediation. If Court proceedings are necessary, the application’s hearing may take between 12-18 months.

If you would like to speak with a lawyer who has experiencing challenging wills, then get in touch with us. You can book in a time here.

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