Can you contest a will in NSW if you have been left out or inadequately provided for? We explain Family Provision claims, eligibility, time limits, notional estate and what the Supreme Court considers.
Being left out of a will, or receiving much less than you expected, does not necessarily mean the will is invalid.
In New South Wales, certain people can ask the Supreme Court to make provision for them from a deceased person's estate where adequate provision has not been made for their proper maintenance, education or advancement in life.
This is known as a Family Provision claim and is governed by Chapter 3 of the Succession Act 2006 (NSW).
There are strict eligibility requirements and, importantly, a 12-month time limit from the date of death.
So who can make a claim, what does the Court consider, and what happens if assets have already passed outside the estate?
No.
There are different types of estate disputes.
A challenge to the validity of a will may involve questions such as whether the deceased had testamentary capacity, whether the will was properly executed, or whether there was undue influence or another legal issue affecting its validity.
A Family Provision claim is different.
The applicant may accept that the will is completely valid but argue that it failed to make adequate provision for them.
The Supreme Court of NSW specifically distinguishes a claim for inadequate provision from a challenge to the validity of the will.
Not everyone who feels that a will is unfair can bring a Family Provision claim.
Section 57 of the Succession Act identifies the people who are eligible to apply.
They include:
Being an eligible person gives someone the right to apply. It does not mean they will automatically receive further provision from the estate.
For some categories of eligible person, including former spouses and certain dependent persons, the Court must also be satisfied that there are factors which warrant the making of the application.
Yes.
A child of the deceased is an eligible person under section 57.
That includes an adult child. There is no requirement that the child must have been financially dependent upon their parent before they are eligible to apply.
Eligibility, however, is only the first step.
The Court will consider matters including the nature of the relationship between the parent and child, the applicant's financial circumstances and future needs, the size of the estate, competing claims and the provision, if any, already made for the applicant.
Estrangement does not, by itself, prevent an adult child from making a claim. The history and circumstances of the relationship may nevertheless be highly relevant to the Court's assessment.
Sometimes.
A grandchild is not automatically eligible simply because they are a grandchild.
Under section 57, the relevant category requires the person to have been wholly or partly dependent on the deceased at some time and to be either a grandchild of the deceased or a person who was a member of the deceased's household at that particular time.
Whether there was the required dependency can become an important issue in a grandchild's claim.
A Family Provision application generally must be filed in the Supreme Court of NSW within 12 months from the date of the deceased person's death.
The clock starts on the date of death, not when probate is granted and not when the applicant first sees the will.
An application can be filed even if probate or letters of administration have not yet been granted.
The Court can permit an application to be made outside the 12-month period where the statutory requirements for doing so are met, but an extension should never be assumed.
If you think you may have a claim, it is much better to obtain advice early rather than wait until the limitation period is close to expiring.
The central question is not simply whether the deceased's decision was "fair".
The Court considers whether adequate provision has been made for the applicant's proper maintenance, education or advancement in life and, if not, what provision ought to be made.
Section 60 of the Succession Act sets out a broad range of matters the Court may take into account. These include:
There is therefore no fixed formula for determining what an applicant should receive.
Two adult children making claims against estates of the same value may have very different outcomes because their financial circumstances, relationships, contributions and competing claims are different.
No.
A Family Provision claim does not give an eligible person an automatic entitlement to part of the estate.
The Court considers the circumstances at the time it determines the application.
For example, an adult child with significant assets and income may be in a very different position from a sibling with limited financial resources, significant caring responsibilities or serious future financial needs.
The size of the estate also matters. The Court must consider not only the applicant but the interests of beneficiaries and any competing eligible persons.
This is where the NSW concept of notional estate can become particularly important.
NSW has provisions allowing the Court, in particular circumstances, to designate property as the deceased's notional estate.
These provisions can potentially apply where property that might otherwise have been available to meet a Family Provision claim has passed outside the estate through particular transactions or arrangements. The relevant regime is contained in Part 3.3 of the Succession Act.
This means that looking only at the assets shown in the probate inventory may not always tell you the full story.
Potentially.
Property held as joint tenants usually passes to the surviving joint owner by survivorship rather than forming part of the deceased estate.
However, the NSW notional estate provisions can, in appropriate circumstances, apply to property affected by transactions or arrangements that result in property passing outside the estate.
The legislation contains specific and technical requirements governing when a notional estate order can be made. It is not enough simply to identify an asset that did not fall into the estate.
Where a substantial asset passed by survivorship, trust arrangements, beneficiary nominations or transfers made before death, it is worth obtaining advice about whether the notional estate provisions may be relevant.
Again, potentially.
The notional estate provisions are one reason a Family Provision claim should not be assessed solely by reading the will.
The timing of a transaction, the nature of the deceased's interest or power, what happened to the property and the statutory requirements governing relevant property transactions all require consideration.
A transfer before death does not automatically become notional estate. The legislation establishes specific thresholds that must be satisfied before the Court can make such an order.
This requires more care than simply saying an executor must always wait 12 months.
Section 93 of the Succession Act provides protection to a legal personal representative who distributes an estate in certain circumstances, including where at least six months have passed since the death, the required notice of intended distribution has been given, the notice period has expired, and the executor has no notice of an actual or intended Family Provision application.
The NSW Government also advises executors that assets should not be distributed where a formal claim or estate contest is on foot until that dispute has been resolved.
Where an executor is aware of a potential Family Provision claim, they should obtain advice before distributing the estate.
This is particularly important where the proposed distribution may make it difficult to satisfy a later Family Provision order.
Do not assume that the claim is valid, but do not ignore it either.
An executor faced with a threatened Family Provision claim should generally:
An executor's role is not simply to "fight for the will" at all costs. The executor administers the estate and must respond appropriately to the proceedings.
Good Family Provision cases are built on evidence, not simply assertions that the will was unfair.
Depending on the case, useful documents can include:
The Supreme Court's current Practice Note for the Probate and Family Provision List requires substantial financial and factual material to be exchanged as part of the case management process.
Obtaining advice early gives the applicant time to identify and preserve this evidence rather than trying to reconstruct it close to the filing deadline.
Not necessarily.
The Supreme Court's current Practice Note provides that, unless the Court orders otherwise, Family Provision proceedings are referred to mediation at the earliest practicable time.
That gives the parties an opportunity to negotiate a resolution before incurring the cost and uncertainty of a final hearing.
If the matter does not settle, it can proceed to a final hearing where a judge determines whether a Family Provision order should be made and, if so, what provision is appropriate.
Settlement does not necessarily mean that either party accepts the other's position. It usually reflects an assessment of the evidence, legal risks, costs and consequences of continuing the proceedings.
There is no rule that the estate will automatically pay everyone's legal costs.
Costs are discretionary and depend on the circumstances and outcome of the proceedings.
The Supreme Court expressly warns that Family Provision proceedings can involve significant legal costs and that an unsuccessful applicant may be ordered to pay the successful party's costs.
Potential costs should therefore form part of the assessment of a claim from the beginning, particularly in smaller estates where legal costs can materially reduce the amount available for distribution.
The first step is to determine whether you are an eligible person and when the deceased died.
Do not wait for the estate to be distributed before obtaining advice.
Useful steps include:
A Family Provision claim generally must be filed within 12 months from the date of death.
An executor can continue administering the estate. Probate can be obtained, assets identified, liabilities paid and estate accounts prepared.
The fact that a Family Provision claim could theoretically be brought does not mean an estate must remain completely untouched for 12 months.
What matters is whether there is an actual or foreseeable claim and whether a proposed distribution is appropriate having regard to the executor's statutory obligations and protections.
Where an executor receives notice of a potential claim, early advice is particularly important.
A Family Provision claim is not simply an argument that a will was unfair.
The Court applies a statutory framework which considers whether the applicant is eligible, whether adequate provision has been made for them and, if further provision should be made, what is appropriate having regard to the estate, the applicant's circumstances and competing claims.
Timing matters.
The application generally has to be filed within 12 months of death, but the work required to assess and properly prepare a claim often starts much earlier.
If you have been left out of a will or believe inadequate provision has been made for you, Urban Law Group can advise you about your eligibility, the strength of a potential Family Provision claim and the practical steps available.
We also advise executors and beneficiaries responding to Family Provision claims and other estate disputes.
This article contains general information only and is not legal advice. The outcome of a Family Provision claim depends on the individual facts and circumstances of the estate and the applicant.