Contesting a Will

07 DEC 2020

 

There are a number of reasons why a dispute may arise with respect to a deceased person’s Will or the administration of their estate. It is crucial that each person is aware of their legal responsibilities for both themselves, and the other parties.  

No provision or less provision made for an eligible person

The death of a loved one is already a difficult and emotional time in any person’s life. When you combine that loss with considering whether to contest the Will of that deceased person, it can make the situation even more difficult.  

Prior to considering a contest of a Will, the first thing to determine is whether that person is in fact entitled to make a claim against the estate. This is done by determining the eligibility of that person which is dictated by the legislation which governs Estate Administration.  

If you are eligible to make a claim, the next consideration is whether or not there are reasonable prospects of success. Eligibility itself does not necessarily mean that any claim for further provision would be successful.  

The actual process for contesting a Will is called a Family Provision Application.

Eligible Person

The Succession Act 2006 (NSW) provides who is considered an eligible party to make a Family Provision Application.  An eligible person includes:

  1. The spouse of the deceased person at the time of their death. 

  2. The defacto partner of the deceased person at the time of their death. 

  3. A child of the deceased person.  

  4. A former spouse of the deceased person. 

  5. A person:

    a) Who was wholly or partly dependent on the deceased person at any particular time, and

    b) A person who is a grandchild of the deceased person or was a member of the household of which the deceased person was also a member at any particular time.

  6. A person who was in a close personal relationship with the deceased person at the time of their death.

Costs for challenging a Will

Another important consideration to be made relates to the legal costs for challenging a Will.  

Generally speaking, the costs in contesting a Will may be paid from the balance of estate funds. However, it is important to be aware that it is not always the case and you may need to pay your legal costs from your own personal funds. 

In considering making a claim against an estate, it is imperative that the potential claimant is aware of what the costs may potentially be, particularly if the claim is unsuccessful.  

Time limits for making a claim

There is a time limit of 12 months from the date of a person’s death in which a Family Provision Application must be commenced in New South Wales. It is crucial that the executors of the estate are made aware of any potential application for provision from the estate as soon as possible in order to avoid any partial distribution of the estate prior to the application being made.  

A partial distribution would mean that the executors have already commenced finalising the estate and distributing the assets. This does not necessarily mean that these assets cannot be part of any Family Provision Application made, but it is best to have the executors aware of any potential claim in order to avoid partial administration of the estate.  

What assets don’t form part of an estate?

Awareness as to what assets actually form part of an Estate is important. Assets which generally do not form part of an estate include:

  1. Real estate owned as joint tenants with another person.

  2. Bank accounts or shareholdings owned joint with another person.

  3. Superannuation.

Whilst there are circumstances which may mean that the above examples do form part of the estate of a deceased person, it is important that appropriate advice is obtained to ensure that any Family Provision Application made takes into consideration the full assets of the estate.

In both making a Family Provision Applications, there are a whole host of issues which need to be considered.  It is important that prior to making a Family Provision Application  expert legal advice is sought to avoid unnecessary costs being incurred. If you are a person who feels that they have unfairly been left out of a Will, please contact our Estate Department on 02 4626 5077 or via email:  kwolthers@marsdens.net.au.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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