Contesting a Will: Introduction

 What happens when you have been unjustly excluded from a will? What about cases in which you have only been left a small amount of provision in a will that is inadequate for your circumstances? Can you contest it in court?

The law concerning family provision and will centres itself around the concept of testamentary freedom, which holds that an individual has the ability to allocate his or her estate to whomever they choose. Crucially though, a will is not irrefutable.

A person who has been left inadequate provision in a will has the legal right to dispute the will in court. Family provision is the legal term for this area of the law.

A family provision order given by the court will overrule the deceased's testamentary freedom insofar as is necessary for the court to change the terms and distribute more fairly the deceased's money, property (both movable and immovable) to correct injustice.

These orders by the court, known as "family provision orders" will be regarded as an addition to the will.

Courts, on the other hand, are often hesitant to overrule testamentary freedom, and as a result, the possibility to contest a will only comes when the applicant is classified as an eligible person according to essential qualifications.

Who qualifies to make a family provision application?

To make a family provision claim, you must first be considered eligible in accordance with the Succession Act in NSW. There are various categories of persons who are able to make a claim, the main ones being:

• The deceased’s spouse;
• The deceased’s de facto partner;
• A child of the deceased;

Other categories of persons able to make a claim include:

• A former spouse of the deceased;
• A grandchild of the deceased;
• A member of the deceased’s household; and
• Persons living in a close personal relationship with the deceased.

What does it take for a Court to make an order?

The court may make a family provision order if it feels the applicant has been left without sufficient provision for their "proper sustenance, education, or development in life," so long as the applicant has proven their right to contest the will under the family provision law.

Consequently, the court can issue an order if it deems that the deceased should have made a provision or a larger amount of provision for the claimant in the circumstances of the case.

As a result, you cannot contest a will just because you believe it is unfair. The goal of family provision law is not to achieve equity or justice among beneficiaries in a will, nor does it strive to punish people for their actions.

The court will only award an order altering provision made in a will challenge if the will insufficiently tends to the needs of those who were supposed to be provided for by the deceased.

Factors and circumstances influencing the Court’s decisions

Here are the main factors that the Succession Act lists and requires the court to consider when deciding whether a family provision order should be made:

• The nature of the relationship between the deceased and the claimant;
• The financial resources and needs of all parties involved, including the claimant
• Any obligations or responsibilities owed by the deceased to the applicant, beneficiaries and other family provision claimants, and the nature of such obligations;
• The claimant’s age and health;
• The estate’s value;
• Whether there were any contributions made by the application made to the estate or wellbeing of the deceased;
• The claimant’s character and conduct;
• Are there any other competing claims for provision out of the estate;
• Was the deceased maintaining the applicant to the deceased’s death;
• Are any other people responsible or liable for supporting the claimant;
• Did the deceased make any provision for the applicant during the testator’s life;
• The testamentary intentions of the deceased expressed in the will; and
• Any other relevant factor.

How do I make a family provision application?

Applicants must file a summons and accompanying affidavit in the NSW Supreme Court to make a family provision claim. It is strongly advised that you seek legal assistance if you believe you are entitled to file a claim. It is critical to remember the following while considering filing a claim:

Probate

A claimant is permitted make a claim after a grant of probate has been awarded, however, they do not have to wait for a grant of probate or letters of administration before starting the process.

Despite this, courts will not be able to decide on a family provision claim until a grant of probate or letters of administration has been issued.

Timeframes

The Succession Act specifies the time restriction for contesting a will, stating that a family provision claim must be filed within 12 months following the deceased's death.

If there is adequate cause, the court will allow an application to be brought out of time. In the following situations, an extension for filing a claim may be granted:

• When the applicant did not know about the deceased's death;
• when the applicant did not know about their legal rights to file an application;
• when the applicant obtained inadequate legal assistance; or
• when the applicant was ignorant of the will's provision for them.

Whether the will is valid

Although a family provision claim presumes that the will is genuine and enforceable, a claimant may contest a will on a variety of grounds, including the validity of the will.

If the will's legitimacy is challenged, the court must first determine the will's legality and provisions before considering a claim for family provision.

What if there is no will?

When a person passes away without a will, known as dying intestate, their property is dispersed according to intestacy laws. In such cases, the entire estate will effectively transfer to their nearest relative.

The functioning of the family provision legislation is not hindered by intestate death, and it is still feasible to challenge the distribution of the estate under family provision law if the claimant is an eligible individual who meets the necessary qualifications.

Who defends the claim for family provision?

The executor and the beneficiaries of the will are both affected by a family provision claim; nevertheless, the executor is responsible for opposing the claim.

In this case, the executor must file a court motion opposing the application for family provision and/or negotiate a settlement with the claimant.

Payment of legal costs: who’s responsible for it?

In family provision disputes, the costs of contesting a will are frequently paid out of the estate. In most cases, if the court rules in favour of the applicant, the estate will cover both the applicant's and the executor's costs.

This will won't always happen though, and courts maintain the authority to impose any costs order it deems appropriate in light of the particulars in the case.

Kinds of family provision orders made by the Court

If an applicant is successful before the court in challenging the terms of the will, the following potential orders include:

• An order stating the payment of a sum of money (the payment might be one lump sum or in instalments);
• an order giving the applicant a property interest;
• an order for the transfer of particular property to the claimant; or
• an order that property be held on trust for the applicant.

For more information, visit: https://familyprovisionlawyers.com.au/

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