As an executor of a Will you may have been approached by a potential beneficiary, indicating that he or she may make a claim. Entitlement to a claim under the Family Provisions Act is limited to certain persons such as spouses and children, and others specified in the Act.. If this happens, it is important that you seek legal advice immediately.
Exclusion from the will of a person who thought they would have been provided a benefit, or if they receive a gift under a will which they consider insufficient, may provide them with an option to apply to the Court for a further legacy to be provided to them. Applications like these are made under the Family Provision Act and are frequently resolved through mediation without need to have a Court hearing.
People may also make an application to challenge a will on the basis that it has not been signed or executed by the deceased at the time when they had the mental capacity to do so.
Challenging a Will
There is a reasonably broad category for persons eligible to challenge a Will.
In order to challenge a Will you must be an eligible person as defined in Section 6 of the Family Provision Act. Simply eligible persons include:
- The wife or husband of the deceased person at time of death.
- The person with whom the deceased person was living in a defacto relationship at the time of their death (including same sex partners).
- A child of the deceased person including if the deceased was in a domestic relationship at the time of death, a person who is a child of that relationship for the purposes of the Property (Relationships) Act 1984 that does not include a step-child or foster-child.
- A former wife or husband of the deceased person.
- A person who was:
- At any particular time wholly or partly dependant on the deceased person, and at any time a member of the same household as the deceased person.
- A grandchild who was at any particular time wholly or partly dependant on the deceased person.
- A person with whom the deceased person was living in a close personal relationship at the deceased person’s death.
You can challenge a Will on the basis that:
- The deceased did not have testamentary capacity at the time of signing.
- Parts of the Will were altered after execution.
- The Will was revoked.
- The Will was made under duress.
- Spouse/Defacto/Child of the deceased does not believe they have been adequately accounted for.
You have eighteen (18) months from the date of the deceased person’s death to apply to the Court to dispute an estate and contest the Will.
Contesting a Will and Family Provision Act NSW
If you are not an eligible person you cannot contest a Will under the Family Provisions legislation no matter how close you were to the deceased.
Where the deceased died before 1 March 2009 Applications for Family Provision Orders are to be made in accordance with the Family Provision Act 1982 (NSW).
Where the deceased died after 1 March 2009 Applications for Family Provision Orders are to be made in accordance with the Succession Act 2006 (NSW).
An Application for a Family Provision may be made whether or not Probate of the Will of the deceased person has been granted. However a Court Order will not be given for provision until there is a grant of Probate or Administration (Section 58 of the Succession Act 2006 (NSW).
The time limit for making a Family Provision Application is no later than twelve (12) months from the date of the death of the deceased person. If the deceased died before 1 March 2009 an Applicant has eighteen (18) months after the date of death of the deceased. Any extension of time for a late Application is made at the Court’s discretion.
The following matters may be considered by the Court in determining whether the person applying is an eligible person and whether to make a Family Provision Order and the nature of any such Order
(a) The nature and duration of the relationship.
(b) The nature and extent of any obligations or responsibilities owed by the deceased person to the Applicant.
(c) The nature and extent of the deceased’s person’s estate.
(d) The financial resources and financial needs, present and future of the Applicant, of any other person in respect of whom an Application has been made for a Family Provision Order or of any beneficiary of the deceased person’s estate.
(e) If the Applicant is living with another person and the financial circumstances of the other person.
(f) Any physical, intellectual or mental disability of the Applicant, any other Applicant or any beneficiary of the estate.
(g) The age of the Applicant when the Application is being considered.
(h) Any contribution (whether financial or otherwise) by the Applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the Applicant.
(i) Any provision made for the Applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate.
(j) Any evidence of the testamentary intentions of the deceased person, including evidence of Statements made by the deceased person.
(k) Whether the Applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so.
(l) Whether any other person is liable to support the Applicant.
(m) The character and conduct of the Applicant before and after the date of the death of the deceased person.
(n) The conduct of any other person before and after the date of the death of the deceased person.
(o) Any relevant Aboriginal or Torres Strait Islander customary law.
(p) Any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death at the time the Application is being considered.
The following are people who are eligible to make a claim for provision or further provision from the deceased estate. They are people who have the following relationships with the deceased person:
- Wife or husband.
- A defacto.
- A child for an ex-wife or husband.
- A person who was at one time dependant or partly dependant upon the deceased and they were a grandchild or they lived in the same household with the deceased.
- A person who was in a close personal relationship with the deceased person.
It is essential that you obtain prompt legal advice about these issues as there are strict time limits on proceedings challenging wills.
We can assist you in all of these matters and help you with Succession and Estate planning. Feel free to contact Kel Graham on 6333 4400 or come into our office at Level 1 4/90 Keppel st Bathurst.