Contesting a will in NSW can be a complex and emotional process. In order to contest a will, there are certain requirements that must be met, such as having a valid reason and filing within a specific time frame. It is important to seek the advice of an experienced legal professional.
You can take steps to prevent your Will from being contested after you die. First, discuss your Will with those you love, so they understand what they will receive after you’ve gone. Then, using clear, unambiguous language, clearly defining each point and maintaining a detailed paper trail ensures little room for challenge.
Who Is Eligible To View The Will?
The Succession Act 2006 (NSW) lists eligible parties who can view a deceased person’s Will in section 54. An eligible person can now pay to obtain a copy of the Will. The executor once had the authority to refuse to supply copies of the Will, so people could only get a copy from the registry once a grant of Probate had been made.
The list of people who may be able to see the Will before a grant of Probate include:
- Anyone referred to or named in the Will, even if they’re not a beneficiary;
- Any individual referred to or designated as a beneficiary in an earlier will;
- A spouse, de facto partner or child who has survived the deceased;
- The deceased’s parent or guardian;
- Persons who may be entitled to a share of the deceased’s estate if they died intestate; and
- Anyone who may claim against the deceased’s estate, including creditors.
Validity Of The Will
Someone can question whether a will is valid or apply under the family provision chapter (chapter 3) of the Succession Act. Legal advice is necessary either way. A court will ask the following questions to determine the validity of a will.
- Is the Will the last Will the deceased made?
- Was the Will executed in keeping with the formal requirements of the Act or meet those exact requirements?
- Was the deceased capable of making the Will?
- Has the Will been altered after the original signing?
- Was the deceased unduly influenced at the time of drawing up the Will?
Undue Influence Explained
Undue influence is a term used to describe a situation where someone uses pressure, coercion, fear or trickery to cause the will-maker to include or exclude certain things they otherwise would not. The court only overturns wills due to undue influence where it is convinced that the person making the Will was tricked or pressured so much that the Will did not reflect their true intentions. If it is evident that the deceased was unduly influenced when drawing up their Will, the court may be particularly suspicious; especially when the person persuading the will-maker stands to benefit from the Will. An individual claiming undue influence must provide evidence to prove that fact. A claim of undue influence is not a claim to be entered into lightly.
Interpreting The Will
The estate executor or other interested party might apply to the Supreme Court of NSW to interpret the Will and determine what the deceased person meant by what they included in the document. This interpretation can be constructive, particularly where beneficiaries from the same family share a name.
The court can remedy an error in a will with a common law power. That power is limited, though. Section 27 of the Act outlines the ‘rectification’ power that the court can use to remedy a will that doesn’t meet the will-maker’s intentions due to how it was expressed. In addition, limited evidence can be admitted to a court hearing under section 32 of the Act if meaningless or ambiguous language is used.
Making A Family Provision Claim
The Succession Amendment (Family Provision) Act 2008 (NSW) came into effect on March 1, 2009. It replaced the Family Provision Act 1982. While the terminology has changed, the rationale behind the provisions is still to make sure adequate provision is made for eligible parties, regardless of whether there is a will or mention made of an eligible party.
Applicants have 12 months from the will-maker’s death to apply the Act. After that, they can apply to the court for an extension so long as all parties consent.
The following people may apply for family provision claims:
– the spouse of the deceased at their death.
– a de facto partner living with the deceased when they died.
– the deceased’s child.
– a former spouse.
– anyone partly or wholly dependent on the deceased at any time.
– a grandchild who was dependent on the deceased at any time, whether wholly or partly.
– anyone living in a close personal relationship with the deceased at the time of their death.
You can forego your rights under the family provision sections of the Succession Act if the court approves.
When interpreting the Will, the court looks at whether each eligible person has been adequately provided for education, maintenance, etc. In addition, the court looks at matters such as the conduct and character of eligible persons before and after death, contributions they may have made toward the deceased’s welfare or property and anything else it deems important. The court can also make interim orders that can be withdrawn, changed, or confirmed later.
A successful application for an order is generally paid out of the estate, but the court may order costs paid as it sees fit.
Assets You Can Claim In NSW When You Challenge A Will
You can only claim the assets that form the estate of the deceased. Those assets are owned by the deceased, in their name, at the time of their death. The assets that can be claimed against are those that remain after any debts the deceased had have been paid. Monies held in bank accounts, cash, shares, real estate, etc., are deemed assets. The estate’s assets do not include jointly owned assets, family trusts or monies in superannuation funds.
What Happens With Jointly Owned Assets?
Assets that are jointly owned don’t form part of the deceased’s estate. When one of the owners dies, the asset passes to the joint owner who outlived them. This situation can be difficult for people further down the track. For example, a surviving parent may remarry later on and name the new spouse as joint owner of the family home. This problem arises when the remaining parent dies, and ownership of the family home passes into the hands of the step-parent. Some families are quite happy for the step-parent to retain ownership of the property. Still, it can cause distress later down the track when the step-parent dies, particularly if they don’t leave anything to their adult stepchildren or remarry, repeating the above joint ownership scenario. Those adult children can’t usually claim against the estate of a step-parent, and they may very well have to kiss the family home goodbye.
Make time to talk with your parents and encourage them to seek professional legal advice before deciding on what to do with their assets and your inheritance. That is the most effective way to avoid situations arising out of jointly owned assets.
Seek legal advice as soon as your parent dies if you find yourself in this situation because waiting for a step-parent to die before dealing with the matter will be far too late.
What Does Tenant In Common Mean?
Tenant in common is a term used when two people share ownership of a property, and their share is defined. For example, one person may own two-thirds of the property while the other may own one-third. Where property is held this way, it is not dealt with in the same way as jointly owned property. If you own a share in a property, you can leave that share to anyone when you die. Ownership of the property won’t automatically transfer to the other shareholders. Ask your solicitor to guide you.
What Is Notional Estate?
Very simply, a notional estate is made up of assets that once belonged to the deceased but did not belong to them at the time of their death. These assets include those owned jointly with someone else and property and possessions that may have been given to someone else before the owner died. Suppose a successful claim is brought against an estate in NSW, and the estate’s assets are not enough to cover the awarded payment. In that case, the court can make a notional estate order if it determines that a family provision order should have been made. Even assets jointly owned or those given away before the date of death can be claimed against as if they formed part of the deceased’s estate if the court considers it so. The rights of the people who currently own those assets are forfeited. Claiming against a notional estate can go back six years.
Establishing Whether You’re Entitled To An Award Payment
You have to be open to disclosing your financial situation to the other party if you hope to make a successful claim against an estate. One of the first things you need to establish is that you have a financial need that has not been met in the Will. You won’t be able to demonstrate that you relied on the deceased person to provide for you if you’re too financially well off. Another factor in determining whether the dead person should have provided more adequately for you is how sizable the estate is. For example, the greater the asset pool of the deceased at the time of their death and any notional estate, the simpler it will be to prove that they should have provided for you. It can help show that your financial need is greater than the beneficiaries named in the Will. If you can show that the deceased provided financially for you while they were living or promised to do so, it can only help your case. Any contributions you may have made toward the deceased estate, financially and otherwise, will also be considered by the court.
Paying The Legal Fees
The court will usually order the deceased’s estate to contribute towards paying your legal fees if your claim is successful. It is unlikely that the estate will cover all of your legal fees, including charges from your solicitor, but it is certainly possible to recover up to around two-thirds of what needs to be paid. In NSW, the court will typically impose an over-limit of $25,000 on the amount they’ll award. Depending on your legal costs tally, you may get less than two-thirds.
The Financial Risks Of Claiming Against An Estate
With many other forms of legal action, there is always the risk that your claim will be unsuccessful. You may find yourself paying the estate’s legal fees as well as your own if your claim is unsuccessful. Many people enter into a ‘no win, no fee’ plan so that if they are unsuccessful, they don’t have to pay their fees unless they are successful, and the costs form part of the settlement recovered from the estate. That doesn’t mean they won’t be required to pay the estate’s fees if unsuccessful. You may also be required to pay for disbursements which can run to thousands of dollars. Make sure to ask your solicitor if a ‘no win no fee arrangement covers disbursement fees. A specialised lawyer will advise you in such a way as to minimise any financial risk. One possibility is that you can arrange insurance cover so that if your claim is unsuccessful, the legal costs of the opposing side will be covered.
What Other Claims Can I Make When Someone Dies?
It may be possible to claim some of the deceased’s life insurance policies, superannuation funds, and interests they held in family trusts. Different rules apply for claims of this type because these assets wouldn’t usually form part of the deceased’s estate. If you can claim against these assets, it can significantly strengthen your contesting claim on the Will. Claiming against these assets is also an alternative if you aren’t entitled to contest the Will. Discuss your situation with your lawyer. They will advise you on your rights.
Settling Out Of Court And Mediation
In truth, most contests are settled outside of the courtroom. Most are decided in compulsory mediation conferences after applying to the court. These mediation conferences are held well before the court’s case is heard. Of course, you should not start a claim unless you and your solicitor are satisfied your case is strong, and you have a good chance of success in court. Settlements are often reached without the need for you to become personally involved. Your legal team will negotiate with the estate’s legal representatives to determine whether they can reach an agreed settlement.
Who might contest a will?
People eligible to contest a will under chapter 3 (Family Provision) of the Succession Act 2006 (NSW) who believe they have not been adequately provided for or have been left out of the will altogether include:
- Someone married to or living in a de facto relationship with the deceased at the time of their passing;
- Children, including adopted and artificially conceived offspring. Stepchildren are only eligible if they prove they were dependent on their deceased;
- Former spouses of the deceased;
- Anyone who was wholly or partly dependent on the deceased; and
- Grandchildren who can prove their dependency on the deceased.
People may be eligible to claim if they’ve lived with the deceased as a household member at some point. For example, if stepchildren have lived with the deceased step-parent, they may be eligible to claim against the estate in NSW. People in a close personal relationship may also be able to claim against the deceased’s estate. A close personal relationship does not have to be a sexual relationship. It can also include siblings.
What evidence might the court consider when someone contests a will?
The court will consider:
- The size of the deceased’s estate;
- The nature and length of a person’s relationship with the deceased;
- Whether or not the deceased was responsible or obliged to provide for the applicant. It is doubtful that a neighbour of the deceased could bring a successful claim against their estate, given the fact that it would be unlikely that the person was duty-bound to provide for the neighbour. However, if the neighbour was also a family member, the outcome may likely be different given that they are now an eligible party;
- The financial circumstances and needs of the person contesting the Will;
- The age of the person contesting the Will at the time of the hearing;
- Whether the applicant contributed to the estate of the deceased; and
- Any physical evidence of statements the deceased may have made to the individual before their death.
Who is responsible for the fees to contest a will?
Contesting a will certainly isn’t free in NSW. Don’t worry if you can’t afford hefty legal fees upfront, though. If successful, your costs will probably be paid for by the deceased’s estate.
How do I start challenging a will?
First, there has to be a valid will which means the estate executor must have applied for Probate through the court. Once Probate is granted, the executor can distribute the assets to the beneficiaries. If you’re contesting the Will, you claim it is unfair and seek an award from the estate to compensate for the deceased’s failure to provide for you adequately. This type of claim is generally referred to as a Family Provision Claim.
Can I challenge a will if I am wealthy?
Claims are financially focused. You have to be prepared to disclose your entire financial position when making a claim. This is because the court looks at whether the deceased did or did not make adequate provisions for you in their Will. Therefore, it isn’t likely your claim will be successful if the deceased left a sufficient amount for you or if you have no financial need because the court will determine that the deceased was not obliged to leave you anything.
Other factors you need to determine
Recapping, the main details you need to establish include:
- That you are an Eligible Person as outlined above;
- That the deceased was domiciled in NSW;
- That the will-maker was duty-bound to provide for you;
- That in the light of your financial need and other factors, the deceased did not make adequate provision for you.
A skilled lawyer can deal with these issues, so obtain an assessment of the strength of your claim before commencing your claim.