Contest Without A Will

This situation is called an ‘intestacy’, and you are entitled to what is set out in the ‘intestacy rules’ contained in the Succession Act 2006 (NSW).

The intestacy rules that determine what you get are complex, but in broad terms they provide:

• If the ‘intestate’ person (the person who died without a Will) was married or in a domestic or de facto relationship, that spouse or partner has priority
• If there is a spouse or partner, but no children, the spouse or partner is entitled to the whole of the estate
• If leaving a spouse, but there exist children with a former spouse, the current spouse or partner gets all personal effects, a statutory legacy, and half of what remains. The children get the other half.
• If leaving children, but no spouse, the children are entitled to the estate in equal shares
• If the intestate person did not have a spouse, partner or children at the time of death, other relatives have an entitlement
• If there are no entitled relatives, then the estate of the intestate person goes to the New South Wales government.

Yes, under section 59(1) of the Succession Act 2006 (NSW), you can contest the amount that you would be awarded under the intestacy rules.

Where there is no Will, instead of ‘probate’, the Supreme Court of New South Wales issues ‘letters of administration’. These allow an ‘administrator’ (who could be the surviving spouse or someone else), to distribute the estate in accordance with the intestacy rules.

The eligibility criteria for a family provision claim is the same as if there were a Will.
Section 57 of the Succession Act 2006 (NSW) sets out strict criteria as to who is able to contest an intestate estate under that Act. These people, in relation to the deceased, are:

• their spouse;
• their de facto partner;
• their child;
• their former spouse;
• a person
  • who was, at any particular time, wholly or partly dependent on them, and
  • who is a grandchild of them or was, at that particular time or at any other time, a member of their household;
• a person who was living in a close personal relationship with them at the time of their death.

Yes, as where there is a Will, if you wish to make a claim for ‘family provision’ under the Succession Act 2006 (NSW), you must bring that within one year of the death of the deceased. In some circumstances, the Court will allow you to bring a claim after the one year period has expired. To work out if you are eligible to apply for an extension of time contact us quickly to minimise any time delays.

As long as you are (a), an eligible person and (b), you have made the claim that the intestate estate does not provide sufficiently for the “maintenance, education or advancement in life of the eligible person”, the Court may make an order for Family Provision and will take into account the following factors:

•  the relationship between the applicant and the deceased, including the nature and duration of the relationship
• the nature and extent of any obligations the deceased person owed to the applicant, to any other person in respect of whom an application has been made for a family provision order, or to any beneficiary of the estate
• the nature and extent of the deceased person’s estate
• the financial resources (including earning capacity) and financial needs, both present and future, of the applicant
• if the applicant is cohabiting with another person—the financial circumstances of the other person
• any physical, intellectual or mental disability of the applicant
• the age of the applicant
• any contribution (whether financial or otherwise) by the applicant to the estate of the deceased person, or to the welfare of them or their family
• 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
• any evidence of the intentions of the deceased, including evidence of statements made by the deceased person
• whether the applicant was being maintained by the deceased person before their death
• whether any other person is liable to support the applicant
• the character and conduct of the applicant before and after the date of the death of the deceased
• the conduct of any other person before and after the date of the death of the deceased person
• any relevant Aboriginal or Torres Strait Islander customary law
• any other matter, the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

This depends on a range of factors. If your claim is successful, it is possible that the costs will be paid out of the estate, but it is not guaranteed. For more information on payment for fees, get in touch with us

If your claim is unsuccessful, you may consider appealing that claim to a higher court.

This depends on a lot of factors. It may take between 1-3 years.

Sometimes. The law considers as an ‘eligible person’, those who are “at any particular time, wholly or partly dependent on” the deceased. So, if a parent was dependent on a child, then they may be eligible to make a family provision claim.

When you work with AJB Stevens, the Family Law process could not be easier. Our top lawyers will assess your situation to ensure that you have a solid case. From here, we will look further into your situation, taking care to ensure we have all the information we need. Once all information is gathered, we will work to get you what you deserve, through negotiations. If negotiations do not work, then we will help you through the Court process.