When a family member dies, it is a difficult time that can put a strain on our family relationships or deepen existing family tensions. If the deceased persons will does not make adequate provision for you, or if you are left out of the will entirely, it can be even more stressful. If you find yourself in this position, you may have the right to contest the will through what is known as a 'family provision claims'. This article will take you through the steps involved in challenging a will in New South Wales (NSW).
What is a family provision claim?
A family provision claim is an application that can be made if a person feels that adequate provision has not been made for them from their deceased family member's estate, or they have been left out of the will completely. This is commonly referred to as "contesting a will".
A person making a will or the will-maker, has freedom of testation. This means the freedom to distribute their assets as they wish when they die. However, in Australia, family provision laws recognise that this freedom must be balanced against the needs of those that the will-maker had a moral obligation to provide for.
Who is eligible to make a family provision claim?
Not everyone can make a family provision claim.
In NSW, under the Succession Act 2006 (NSW) you are eligible to make a claim if you are:
- A spouse of the deceased person at the time of their death
- In a de facto relationship with the deceased person at the time of their death
- A child of the deceased person
- A former spouse of the deceased person
- A person who was at any time, wholly or partly dependent on the deceased person and was a grandchild of the deceased person or a member of their household at any time
- A person who was living in a close personal relationship with deceased person at the time of their death1.
The Court will decide what is adequate provision for the applicant's proper maintenance, education, and advancement in life from the deceased person's estate, considering all the circumstances of the case. For some eligible persons, the Court will also need to be satisfied that there are factors warranting the making of the application.
Strict time limits apply – the 12 month rule
There are strict time limits that apply to contest a will.
A family provision claim can be made whether probate or administration of the estate of the deceased person has been granted or not. In NSW, an application for a family provision order must be made no later than 12 months after the date of the death of the deceased person.
Contesting a will can be a complex and daunting process. If you are considering making a family provision claim, it is important to seek legal advice as soon as possible. Our wills and estates lawyers will provide legal advice and guidance to manage the process for you effectively and respectfully.
Footnote
1 See section 57 of the Succession Act 2006 (NSW).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
