In New South Wales the law that governs family provision claims is written in the Succession Act NSW.
While each state has relatively minor eligibility and procedural hurdles, the main differentiator with NSW is the inclusion of something called Notional Estate.
This page refers to contesting a will under family provision law. This is where you argue that the will is unfair, as opposed to invalid.
If you think a will should be invalid – if, for example, the will-maker did not know what they were signing – that is a different area of law where different rules apply.
This is crucial. Do you have it? Have you asked for a copy? What does it say?
If you haven’t seen a copy of the will the very first step is to obtain one – whether you are named in it or not. You can simply ask the executor for a copy. If he or she won’t oblige there are other steps that can be taken. Contact us, we may be able to help.
If there is no will you need to consider whether or not you are eligible under the rules of intestacy – in other words, what happens when there is no will. These rules do not always work fairly and can be subject to challenge, just like any will can.
If you don’t know who the executor is, consider asking close friends and relatives of the deceased or the deceased’s lawyer. If you are still unable to find a will you need to consider the rules under intestacy and how they affect you.
If you have seen the will and you know that, either:
… consider the next step, establishing eligibility.
Not just anyone can contest a will, you must be a person who was in a certain relationship with the deceased.
Are you an ‘eligible person’? In other words, do you fit into the category of people who are permitted to contest a will?
In New South Wales, these are:
Follow the links to read more about each category and see if it applies to you.
In New South Wales the limitation period for family provision claims is 12 months from the date of death.
If you wish to contest a will you’ll need to file an application in court no later than the specified date.
An application is considered ‘made’ on the day that it is filed in the Registry. If the date of death is uncertain, the court will determine a reasonable time or date.
If you do not meet this deadline and you have a good reason why, you may be able to convince the court to make an exception. Generally speaking however, time limits when challenging wills are strictly applied.
Once you have established that 1) you are not in the will or not adequately provided for in the will, 2) you are an “eligible person” according to s.57 of the Succession Act 2006 NSW to make a claim for family provision and 2) the limitation period has not expired, the next step in challenging a will is to obtain clarity surrounding the assets and liabilities of the estate.
What are the assets and liabilities of the estate and what are their nature? Was there property, superannuation, savings? Did the deceased own a business, shares, other investments? Were the assets held solely or jointly? Did he or she have debts?
In a claim for family provision it is ultimately the executor’s duty to disclose these details. But in the early stages it is still helpful if you have at least a rough idea of what you’re dealing with. If you have been out of touch with the deceased and genuinely have no idea as to what the estate comprises often a letter from your solicitor to the estate solicitor is sufficient to obtain some particulars. Contact us if we can help you do this.
Believe it or not, you do not have a ‘right’ to an inheritance. If you are a wealthy person, if you are ‘doing well’ financially, then your deceased parent is not obliged to give you more money.
I once had an enquiry from a man who was aggrieved that his mother had only left him $100,000 out of an estate of $1 million. She gave the rest to his sister. When I asked some questions it turns out that he was a self-funded retiree with over $6 million in assets, but he was calling me because he didn’t think it was fair that his sister got more than him. He didn’t need the money, he was just angry that his mother didn’t treat them equally. I had to tell him that I didn’t think he had a case because a) he was already very wealthy and, besides b) his mother still gave him $100,000 – a lot of money!
Turns out this wasn’t really about the money, it was about this man’s anger and jealousy towards his sister who his mother favoured, as was her right. Parents can (and do) favour one child over the other. There is no rule that says they have to treat them equally.
So what is ‘need’ and do you have it? It depends – every case is different. As most of us don’t have $6 million in assets, most people can satisfy this step because most people have a mortgage or they’re renting or they don’t have enough superannuation to retire on or their house needs renovations that they can’t afford. In most cases this step is not a difficult one to get over.
Generally speaking a person with a mortgage or some other debt will have ‘need’, but this is to be considered in light of the size of the estate and its competitors.
Once you have established that:
… the next step is to take a look at what you’re up against.
A common scenario is where a parent enters into a second marriage and has competing beneficiaries between a spouse from a second marriage and children from the first marriage.
Who are the other beneficiaries named in the will? What relationship did they have with the deceased? What is their financial position? Who, if anyone, is also bringing a claim for family provision against the estate?
Of your competitors, do they have a stronger, lesser or equal claim upon the estate? If a long term spouse or de facto of the deceased is in an equal financial position to a child of the deceased, the claim of a long-term partner will generally be greater than that of a child. But all cases are different.
Once you have identified any competitors, consider what your financial circumstances are in relation to theirs. Do they need the money just as much as you do? Do they have a mortgage or do they own their own home? Do they have a good job? Does their partner earn a good income? Are they in good health?
Depending on the circumstances, which vary greatly, this step takes specialist knowledge. At this stage, if you have checked all of the other boxes, you should obtain specialised advice.