Russell Kelly & Associates · Norwest NSW

Contesting a Will & Family Provision Claims NSW

Contesting a Will & Family Provision Claims in NSW

Disputes concerning a Will or deceased estate can arise for a number of reasons. A person may question whether a Will is legally valid, or an eligible person may believe that adequate provision has not been made for them from the deceased person’s estate.

Russell Kelly & Associates advises clients in relation to contested estates, challenges to the validity of Wills and Family Provision claims under the Succession Act 2006 (NSW).

Challenging the Validity of a Will

A challenge to the validity of a Will is different from a Family Provision claim. A validity dispute concerns whether the Will itself should be accepted as legally effective.

Issues that may arise include:

  • Testamentary capacity: whether the deceased had the required mental capacity when making the Will.
  • Undue influence: whether the Will resulted from improper coercion rather than the deceased person’s independent intentions.
  • Knowledge and approval: whether the deceased knew and understood the contents of the Will.
  • Fraud or forgery: whether the Will or a signature was fraudulently created or altered.

The circumstances surrounding the preparation and execution of a Will can be important when determining whether its validity should be challenged or defended.

Family Provision Claims in NSW

A Family Provision claim does not necessarily challenge the validity of the Will. Instead, an eligible person asks the Court to make provision, or further provision, from the deceased person’s estate.

Under the Succession Act 2006 (NSW), the Court considers whether adequate provision has been made for the applicant’s proper maintenance, education or advancement in life.

Who May Be Eligible to Make a Claim?

Section 57 of the Succession Act 2006 (NSW) identifies categories of people who may be eligible to apply. These include:

  • a spouse of the deceased at the time of death;
  • a person who was living in a de facto relationship with the deceased at the time of death;
  • a child of the deceased;
  • a former spouse of the deceased;
  • in certain circumstances, a person who was wholly or partly dependent on the deceased and who was either a grandchild of the deceased or a member of the deceased’s household; and
  • a person who was living in a close personal relationship with the deceased at the time of death.

Eligibility alone does not mean that a Family Provision claim will succeed. The circumstances of each estate and applicant must be considered individually.

What Does the Court Consider?

When considering a Family Provision claim, the Court may take into account a range of circumstances. These can include the applicant’s financial position, age and health, their relationship with the deceased, the size and nature of the estate, any obligations or responsibilities owed by the deceased, and the circumstances and competing needs of other beneficiaries.

The Court may also consider other matters listed in section 60 of the Succession Act 2006 (NSW), depending on the circumstances of the case.

Time Limit for Family Provision Claims

A Family Provision application in NSW generally must be commenced within 12 months after the date of death. Applications outside that period may be possible in certain circumstances.

Because time limits can have significant consequences, legal advice should be obtained promptly if you are considering making a claim or responding to one.

Notional Estate

NSW succession law also contains notional estate provisions. In certain circumstances, these provisions may allow the Court to designate particular property as notional estate for the purposes of a Family Provision claim.

The rules concerning notional estate are complex and depend upon the particular transactions, property and circumstances involved.

Learn more about Probate, Wills and Deceased Estates.

Resolving Estate Disputes

Estate disputes do not necessarily have to proceed to a final Court hearing.

Depending on the circumstances, disputes may be resolved through negotiation or mediation. Family Provision matters in the Supreme Court of NSW are case managed in the Probate and Family Provision List, and mediation commonly forms part of that process.

We can advise you about your position, the available options and the appropriate steps for resolving or defending an estate claim.

Learn more about Alternative Dispute Resolution.

Advice About Contested Estates

Whether you are considering contesting a Will, responding to a Family Provision claim, acting as an executor or dealing with another dispute concerning a deceased estate, obtaining advice early can help protect your position.

Contact Our Office

This information is general in nature and does not constitute legal advice. Legal advice should be obtained about your particular circumstances.