Have you been unfairly left out of a will? Have you been insubstantially provided for in a will? If so, can you contest a will?

The laws of wills and estates are founded on the principle of testamentary freedom, meaning that an individual may distribute their estate however and to whomever they wish. However, a will is not indisputable. The law allows a person who has been unfairly left out of or insufficiently provided for by a will to challenge the will in court. This area of law is known as ‘family provision’.

A successful family provision claim will override the principle of testamentary freedom and allow the court to vary the terms of the will to distribute the property, money and/or other assets held by the estate in a manner which rectifies the previously unfair provision. These ‘family provision orders’ will be treated as a codicil to the will.

However, courts are generally reluctant to override the deceased’s testamentary freedom, and the opportunity to dispute a will only arises where the applicant is an eligible person who meets the relevant criteria.

Who Can Make a Family Provision Claim?

Family provision claims are only available for eligible persons. In NSW, the Succession Act identifies the categories of people eligible to make a claim. This includes:

The deceased’s spouse;

The deceased’s de facto partner;

A child of the deceased;

A former spouse of the deceased;

A grandchild of the deceased;

A member of the deceased’s household; and

Persons living in a close personal relationship with the deceased.

When Will the Court Make a Family Provision Order?

Provided that the applicant has established their eligibility to contest the will under the family provision legislation, the court may make a family provision order if it believes that the applicant has been left without adequate provision for their ‘proper maintenance, education or advancement in life’. This means the court can make an order where it believes that in the circumstances, the deceased should have made a provision or a more substantial provision than they did for the applicant.

Consequently, you cannot dispute a will simply because you consider the will to be unfair. Family provision law does not seek to create equality or fairness between beneficiaries, nor does it attempt to reward or punish a person for their behaviour. The court will only uphold a challenge to a will and override the deceased’s testamentary freedom where the deceased’s will fails to meet the needs of those whom the deceased could be expected to provide for.

What Will the Court Consider When Making a Family Provision Order?

The Succession Act provides that the court is to consider the following factors when determining whether or not to make a family provision order:

The nature of the relationship between the applicant and the deceased;

The financial resources and needs of the applicant, the beneficiaries and any other person who has made a family provision claim;

The nature of any obligations or responsibilities owed by the deceased to the applicant, the beneficiaries and any other person who has made a family provision claim;

The age and health of the applicant;

The value of the estate;

Any contributions the applicant made to the estate or welfare of the deceased;

The character and conduct of the applicant;

Whether there are competing claims for the deceased’s estate;

Whether the applicant was being maintained by the deceased prior to their death;

Whether any other person is liable to support the applicant;

Whether any provision was made for the applicant during the deceased’s lifetime;

Any evidence of the deceased testamentary intentions; and

Any other relevant matter.

How to Make a Family Provision Claim?

To make a family provision claim, applicants are required to file a summons and supporting affidavit in the NSW Supreme Court. If you think you are eligible to make a claim, it is strongly recommended that you obtain legal advice. When considering making a claim, it is important to take note of the following:

Probate or Administration

An applicant can contest a will after probate has been granted, but they are not required to wait for a grant of probate or letters of administration before commencing proceedings. Even so, the court will not be able to finally determine a family provision claim until after a grant of probate or letters of administration have been made.

Validity of the Will

A family provision claim generally assumes that the will is a valid will, however, an applicant may challenge a will on multiple grounds including challenging the validity of the will. If there is a challenge as to the validity of the will, the court is required to assess its validity and terms before it can consider a claim for family provision.

Time Limit

The Succession Act sets out the time limit to contest a will, providing that an applicant must commence proceedings for a family provision claim within 12 months of the deceased’s death. The court will only allow an application to be made out of time if there is sufficient cause. An extension of time to claim may be allowed in the following circumstances:

Where the applicant was unaware of the deceased’s death;

Where the applicant was not aware of their legal rights to make a claim;

Where the applicant received poor or insufficient legal advice; or

Where the applicant was unaware of the provision made for them under the will.

Can You Apply For Family Provision When There is No Will?

Where a deceased dies intestate, meaning without a will, their estate will be distributed under the intestacy rules. Essentially, their entire estate will pass to their closest relative. Dying intestate does not prevent the operation of the family provision legislation and it is still possible to contest the distribution of the estate under family provision provided that the applicant is an eligible person who satisfies the relevant criteria.

Who Defends a Family Provision Claim?

A family provision claim will affect both the executor and the beneficiaries of the will; however, the responsibility for defending a family provision claim lies with the executor. In this, the executor is required to oppose the application for family provision in court and/or to negotiate a compromise with the applicant.

Who Has to Pay The Legal Costs?

The costs of contesting a will in family provision claims are often paid out of the estate. Where an applicant is successful in their claim, the estate will generally meet the costs of both the applicant and the executor. However, this will not always be the case, and the court will retain discretion to make any costs order which it sees fit given the particular circumstances of the case.

What Types of Family Provision Orders will the Court Make?

If a will is successfully disputed, the family provision orders which the court may make include:

An order specifying the payment of an amount of money (the payment may be made as a lump-sum or be paid in periodic instalments);

An order granting the applicant interest in a property;

An order requiring certain property to be transferred to the applicant; or

An order that particular property be held on trust for the applicant.