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Challenging a Will NSW

Challenging a Will NSW

This is a guide to the main steps required for challenging a will in NSW. You should obtain legal advice appropriate to your own situation and not rely solely on the contents of this page if you decide to contest a will in NSW. The information provided herein is for information purposes only.

How to Begin Challenging a Will in NSW

When you challenge or contest a Will, a claim is brought in relation to a valid Will, which means that the Will must have been lodged for Probate. The person named in the Will as the executor applies to the Court for Probate, and when that is granted, the executor gains control of the estate for the purpose of winding it up and distributing the assets.

If you “contest a Will” it means that you are claiming that the Will is unfair, insofar as the deceased did not make adequate provision in their will for you on their death, or if they have died without a will, as a result of the application of the Intestacy Rules.

You are effectively seeking further provision (an Award) from the estate, to make up for the deceased’s failure to make adequate provision for you.

This type of claim is often called a Family Provision Claim.

What is a Family Provision Claim?

In New South Wales the Act that deals with Family Provision claims is called the Succession Act, 2006.

If you are contesting a Will you are usually not claiming that the Will is invalid, just that it is unfair.

If in fact you also consider that the Will is invalid, then different issues arise and you may have considerably more extra rights. Ask a specialised and experienced solicitor for advice: click here for information on selecting a solicitor.

CWPL is a law firm that is specialised in estate litigation, and all of its lawyers are highly experienced in will disputes: click here for more information.

A family provision law exists in all States which enables people to contest a Will but different rules apply between each state.

In this page, we set out the main things applicable to contesting a will in NSW. Similar rules apply if the deceased died without a will.

Practical Issues to Challenging a Will in NSW

The main things that you need to be aware of is who is eligible to bring a claim, what you need to prove, the time limits for making a claim, and what factors the Courts take into account.

When Must a Claim be brought in NSW?

In New South Wales your claim must be brought within 12 months of the death of the deceased.

If you are going to be late in bringing your claim, ask your lawyer whether you can apply for an extension, as the court will often allow you to apply late.

If Probate has not been granted by the time the 12 months has expired, you should see a solicitor immediately, as special steps can be taken to commence the claim within the required 12 month period, even though there is no Probate.

How is a Claim commenced in New South Wales?

Normally the solicitor acting for you will write to the estate saying you intend to bring a claim. Sometimes the executor, acting on behalf of the estate may make an agreement to settle your claim at that early stage, and no legal proceedings need to be commenced in court.

If you think this may be the case with your claim, contact a lawyer to prepare your case for early negotiation and hopefully an early mediation.

However usually the estate will not settle at this early stage and it will be necessary for your solicitor to issue a claim in the Court by issuing an Application.

The application is normally brought in the Supreme Court where there is no limit on the amount claimed. Claims may also be brought in the District Court, but there is a lower limit on the amount that can be Awarded to you.

Who can bring a claim?

In order to be able to bring a claim in New South Wales, you must be an Eligible Person. You will be entitled to make a claim if you are one of the following:

· A spouse (married or defacto);
· A child;
· A former spouse;
· A person: who was, at any particular time, wholly or partly dependent on the deceased, and; who is a grandchild, or was, at that particular time or at any other time, a member of the household of which the deceased person was a member;
· A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

These categories are quite generous as some people are eligible to claim because they lived with the deceased at some stage and were members of the same household.

In some States stepchildren may find it difficult to fit into a category that permits them to claim in that State. However, a step-child can sometimes be qualified to bring a claim in New South Wales if they have lived with the deceased stepparent.

Note also that people who are living in a close personal relationship, without being a couple, may be able to claim, such as two sisters living together: see the last category in the bullet points above.

Other things that you need to establish

In outline the main things you need to establish are:

· That you are an Eligible Person: see above;
· That the deceased was domiciled in NSW;
· That the deceased had a duty to provide for you;
· That in the light of your financial need and other factors, the deceased did not make adequate provision for you.

All of these issues can be dealt with by a skilled lawyer, so obtain an assessment of the strength of your claim, prior to commencing your claim.

Domiciled in NSW

Apart from being eligible to claim you must show that the deceased was domiciled in NSW, and that any real estate assets you are making a claim over, are situated in NSW. A deceased person’s domicile is usually the place of their last habitual residence.

Duty to Provide for You

You also need to be able to establish that the deceased had a duty to make adequate provision for you. For example even if a neighbour is able to fit into a category of Eligible Persons, it is unlikely that a deceased person had a duty to provide for their neighbour, and so often a claim by a neighbour would fail.

However the situation could be different if the neighbour was also a relative or a carer, or if they were in some other form of relationship with the deceased, that makes them an Eligible Person.

The Deceased Failed to Make Adequate Provision

You then also need to establish that the deceased did not make adequate provision for you. If the deceased has already left sufficient money to you, you will not be able to make a claim. But if the amount left is not sufficient, you may be able to claim.

If the person who wanted to make a claim is too well off, it is quite possible that they have no financial need, and based on that, the Courts may hold that the deceased had no obligation to leave anything to them.

Any claim you bring is financially focused, and you must be prepared to disclose your financial position.

What assets can be claimed in NSW?

NSW has some special provisions that can be useful in helping to widen the range of assets that may be taken into account.

Essentially a claim can only be made against the assets of the deceased’s “estate”; i.e. assets in the name of the deceased at the Date of Death, after all their debts have been paid.

Therefore, the assets of the estate will include real estate in NSW, cash in the bank, shares etc., but not jointly-owned assets, monies in superannuation funds, or assets held in family trusts etc.

Jointly Owned Assets

If any of the deceased’s assets are in joint names they are not part of the estate, and pass to any other joint owner who outlives the deceased.

If the deceased owned a property with another person as a joint owner, when the deceased dies the ownership of the property would pass directly to the other person (the survivor) outside of the will, and the property is not part of the deceased’s estate.

This is a problem for many adult children who have lost a parent, and the surviving parent then re-marries and puts the family home into the name with the step-parent, with them as a joint owner.

Then when the parent dies, the property virtually automatically passes to the step-parent as the surviving joint owner.

When the step-parent dies, the adult children are often unable to claim from the estate of the step-parent, because they do not fit into a category of people that may bring a claim against the estate of the step-parent.

If the child had lived with both the parent and the step-parent, they may fit into the second-last category in the bullet points above, and then may be able to bring a claim. Otherwise they cannot claim against the estate of the deceased step-parent.

For adult children facing the above situation, it is best if they encourage their parents to get proper legal advice to protect the child’s inheritance. Often a parent has not considered this may be a problem. If this has not happened, then it is best to get legal advice as soon as their natural parent dies, rather than wait unit the step-parent dies, as then it may be too late.

For a child finding themselves in this situation it is best to get legal advice as soon as their natural parent dies, rather than wait until the step-parent dies, as then it may be too late.

If the property is owned by two people without any share being specified, they are considered “joint tenants”, and the above rules will apply.

Assets in Two Names: Tenant in Common

Sometimes the two persons are shown as owners of a property, with a share of ownership shown for each eg one-third to one and two-thirds to the other, or half and half.

Then the above rules regarding jointly owned assets will usually not apply, and the share owned by a person who dies can normally pass under their will to anyone they like: their half share stays intact and does not automatically pass to the co-owner, such as a step-parent.

Ask a solicitor for guidance.

Notional Estate

In NSW, if you have a successful claim and there are not enough assets in the estate to satisfy the payment that has been Awarded to you, you may be able to “claw back” certain gifts made by the deceased within certain time periods before they died. The claw back provisions can go back six years, but different tests apply.

This means that even if there are jointly owned assets, or assets were given away before the deceased died, it may be possible to claim against them, as if they were part of the estate.

Contested Wills and Probate Lawyers successfully ran an important case in the Supreme Court in NSW where there was virtually nothing in the estate except notional estate, and the claim was successful for CWPL’s client.

What Factors Are Taken Into Account When Working out Whether You Are Entitled to Be paid an Award?

To make a successful claim, you will need to establish that you have financial need, and so you must be prepared to disclose your assets and income to the other side.

If you are too well off, you will not have financial need and you will not be able to show that the deceased should have provided for you.

The size of the estate is also relevant: the more money that the deceased left, and the greater the amount of notional estate, the easier it can be to show that the deceased should have provided for you, and that you have financial need compared to the beneficiaries named in the will.

The court will also look to whether the deceased had already provided for you during their lifetime or promised to do so, the contribution you have made to the deceased’s life in financial and other terms, as well as the financial and other needs of the other beneficiaries named in the Will.

Legal Fees

The general rule is that if you are successful the court will order the estate to contribute towards your legal fees.

Legal Costs if You are Successful with Your Claim to Contest a Will in NSW

This will not cover all of the fees that your solicitor will charge but generally you should recover up to about two-thirds. Note that in NSW, the court will often impose an over-all limit of $25,000 on the amount that they will award, so the amount you may get back could be less than two-thirds, depending on how much your legal costs amount to.

Legal Costs if Your Claim is Unsuccessful: the risks of making a claim

The main risk that anybody making a claim faces is that if they are not successful, the estate may claim its legal costs back from them. An unsuccessful claimant will not only have to pay the estate’s legal costs, but if they are not on a No Win No Fee plan, they will also need to pay their own legal costs to their solicitor, even though their claim has not been successful.

A specialised and competent solicitor will guide you so as to minimise the risk. They may be able to arrange for insurance to cover the risk of the legal costs, so that you will be able to bring the claim without the fear of having to pay the other side’s legal costs if you lose.

If your solicitor has provided a No Win No Fee arrangement to you, you should not be liable to pay any legal fees to your solicitor unless they have been recovered from the estate as a part of the settlement or Award payable to you. However, even under a No Win No Fee arrangement you may still be liable for disbursements which can be thousands of dollars. You should ask your solicitor if their No Win No Fee agreement covers disbursements.

Under CWPL’s No Win No Fee plan we do not normally require you to pay a cent from your own pocket.

[Click here for information on the No Win No Fee arrangement that CWPL can usually offer its clients for will contests.]

Other Claims You Can Make on the death of the deceased

In addition to contesting the will of the deceased, you may also be able to claim against some superannuation funds, life insurance policies, and interests that the deceased had in family trusts.

These assets would not normally form part of the deceased’s estate, and separate rules apply.

For many people who are entitled to bring a claim and contest a will, these additional rights can greatly strengthen their position.

If you are not an Eligible Person and cannot contest the will, this may be a good alternative claim for you. Consult a lawyer for an explanation of your rights.

Mediation/Settlements out of Court

Most will contests do not go to a Court hearing: they are often settled in a compulsory mediation conference after the Application is filed in the Court, well before the Court ever hears the case.

However you should not commence a claim unless you and your solicitor feel satisfied that you have a sufficiently good claim to be able to be successful in Court.

At mediation you do not need to worry about face to face arguing with the other side. Your own legal team will work with the estate’s team to see whether a settlement can be reached, and usually a settlement can be reached without you getting personally involved.

If you’re thinking of challenging a will in NSW, consult with one of our experienced wills and probate lawyers first.

Our NSW office is located at:

Ground Floor, 3 Spring St
Sydney, NSW, 2000
Phone: (02) 9241 1522
Fax: 1800 677 882
Intl. Fax: +61 3 8352 4321