After the death of a loved one, you may feel that their Will has not provided adequately for you or other family members. Here we set out what you need to know to contest or challenge a Will in New South Wales.
1. The Importance of Wills
After death, there needs to be a set of rules describing what happens with the possessions and assets (the ‘estate’) of the deceased. There are ‘default rules’ that apply if an individual dies without a valid Will being made or executed and these are set out in the Succession Act 2006 (NSW). This situation is called ‘intestacy’. These rules can also be challenged in the same way you challenge a will.
Many people believe that it is their choice to decide who gets what when they pass away and don’t want their assets to be distributed in accordance with the intestacy rules. This concept, sometimes called ‘freedom of testation’, is where a Will comes in. A validly executed Will sets out who gets what in accordance with the deceased’s ( the ‘testator’s’) wishes.
2. What Does ‘Contesting’ a Will Mean?
Upon the death of the testator, as a family member (and in some circumstances a non family member) of other loved one, you may wish to question that Will and the way it calls for property to be distributed. You may consider that the Will itself was ‘improperly’ made or executed. This may happen if you believe that there was fraud, undue influence, or a lack of mental capacity at the time of signing the Will. We consider these possibilities below in section four.
You have the option to ‘contest’ a Will, on the other hand, where you accept that the Will was validly made or executed, but you consider that the distribution of assets in that Will was unfair or inappropriate.
3. Contesting a Will with a Family Provision Claim
In New South Wales, the Succession Act 2006 provides a mechanism for contesting the distribution of assets in the Will. This is called a ‘family provision’ claim. Under section 59 of that Act, the Court has the power to alter the distribution of assets in a Will if adequate provision for the proper maintenance, education or advancement in life of an ‘eligible person’ has not been made.
So, who is an ‘eligible person’ who can make such a claim? Section 57 of that Act sets out the criteria for being an ‘eligible person’. Eligible persons are:
- the spouse of the deceased;
- the de facto partner of the deceased;
- a child of the deceased;
- a former spouse of the deceased;
- a person
- who was, at any particular time, wholly or partly dependent on the deceased, and
- who is a grandchild of the deceased or was, at that particular time or at any other time, a member of the household of which the deceased was a member;
- a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.
It is worth noting that simply being left out of the Will is not, in itself, enough for an eligible person to succeed with a family provision claim. The court needs to be satisfied that there was not ‘adequate provision’ made for that individual in the Will.
There are also a range of limitations/restrictions that anyone considering a family provision claim needs to keep in mind. The main restriction s that there is a time limit on bringing the claim (generally 12 months from the date of death, though extensions are possible);
4. Other Ways of Challenging a Will
We mentioned earlier that a Will might also be challenged or disputed on the basis that it has not been properly made or executed. This could happen if you consider that there was:
- Fraud. For example, if you consider that the testator was misled into thinking they were signing a document other than a Will;
- Undue influence. This might happen where a testator has been coerced into executing a Will that they otherwise would not have.
- Mental Incapacity. This might happen, for example, where a testator was not in a state of mind to realise that they were executing a Will.
Please note the information provided here is general, and for legal advice which addresses your situation, you must consult a solicitor directly. Get in touch with us if you would like to discuss challenging or disputing a Will.