Contesting a Will in New South Wales

A claim can only be made in NSW if either :

• (a) there is real estate property owned by the deceased situated in NSW and/or
• (b) the deceased was domiciled (living permanently) in NSW at the date of his or her death and owned personal property anywhere.

Pursuant to Section 54(2) of the Succession Act 2006 (NSW) the following persons are entitled to inspect a Will of the deceased:

• a) any person names or referred to in the Will;
• b) any person named or referred to in an earlier will as a beneficiary;
• c) the surviving spouse, de-facto or issue;
• d) the parent or guardian of the deceased;
• e) any person entitled to a share if the deceased has died intestate;
• f) any parent or guardian of a minor referred to in the Will or who would be entitled to a share if the deceased died intestate;
• g) any person/creditor who may have a claim against the deceased;
• h) any person with management of the deceased’s personal estate immediately before death;
• i) an attorney under the deceased’s enduring power of attorney;
• j) any person belonging to a class of persons prescribed by regulations.

The legal term when the deceased died without a Will is that the deceased died “Intestate”.

In NSW, the list of beneficiaries when there is no Will are as follows:

• 1. If survived by spouse/s and has no issue then the spouse/s is entitled to the entire estate.
• 2. If survived by spouse/s and issue of spouse/s then the spouse/s is entitled to the entire estate.
• 3. If survived by spouse/s and issue of another relationship (e.g. issue of an ex-spouse or ex-domestic partner) then:-
  • The spouse/s share between them:
    • – Legacy of $350,000.00 as adjusted by the Consumer Price Index (CPI) in accordance with a formula set out in intestacy laws;
    • – The intestate’s personal effects; and
    • – One half of the remainder of the estate.
  • The issue is entitled to:
    • – All children including those of the past relationship receive the remaining part of the estate.
• 4. If survived by multiple spouses then the multiple spouse/s entitlement is shared:
  • – In accordance with a written agreement they make between themselves and submit to the administrator of the estate: OR
  • – In accordance with an order of the Supreme Court; OR
  • – Equally between them.
• 5. Right of one spouse to acquire any property:
  • – The spouse of an intestate has the right to acquire any of the property that belonged to the deceased. The purchase price paid for the property is firstly paid from the spouse’s entitlement in the estate and if sufficient then from their own resources. The spouse may acquire any real estate or personal estate such as a car, boat or shares.
• 6. If survived only by issue then the:
  • – Children of the estate will share equally;
  • – If the children of the intestate are deceased leaving children of their own, then those children will share the portion of the estate that their parent would have received;
  • – This will continue down the generations until there are no further issue.
• 7. If survived by other relatives then the relatives will inherit as follows:
  • a) Parents;
  • b) Siblings (either whole or half-blood);
  • c) Grandparents;
  • d) Aunts and uncles (either whole of half-blood);
  • e) First cousins; and
  • f) The Crown.

The time limit to contest a Will in NSW fall under two categories:

• i) For deaths on or after 1 March 2009 the time limit is within 12 of the date of death – Succession Act 2006, s 58(2); and
• ii) If the date of death is uncertain the Court is to determine a reasonable time or date – Succession Act 2006 s 97 and Family Provision Act 1982, s 16(5).

To receive an order for provision or further provision you must be an eligible person/applicant.

Pursuant to Section 57(1) of the Succession Act 2006 (NSW) the following are “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person in NSW:

• a) the wife or husband of the deceased at the time of death;
• b) person in a de-facto relationship with the deceased at the time of death (includes same sex relationships);
• c) child of the deceased;
• d) former wife or husband of the deceased;
• e) grandchild or member of the household of the deceased who was at some time dependent (wholly or partly) on the deceased;
• f) person with whom the deceased was in a close personal relationship at the time of death (two adults that cohabitate and provide each other with domestic support and personal care, without fee or as a volunteer on behalf of a charitable or like organization);

*Under Succession Act 2006, s 57(1)(e) a former de-facto spouse (NOT EXPRESSLY LISTED but may be eligible if ever wholly or partly dependent on the deceased and ever a member of a household that included the deceased);

*Under Succession Act 2006, s 57(1)(f) a step-child, parent or sibling (NOT EXPRESSLY LISTED but may be eligible if ever wholly or partly dependent on the deceased and ever a member of a household that included the deceased OR in a closer personal relationship at the time of death).

Pursuant to Section 60(2) if the Succession Act 2006 (NSW) the Court takes the following evidence into consideration:

• a) any family or other relationship between the applicant and the deceased (including the nature and the duration of the relationship;
• b) any obligation or responsibilities the deceased had to the applicant or beneficiary;
• c) the nature and extent of the deceased’s estate and liabilities;
• d) the financial resources (including earning capacity) and financial needs of the applicant (both present and future), any other applicant or beneficiary;
• e) the financial circumstances of another person the applicant is cohabiting with;
• f) any physical, intellectual or mental disability of the applicant or any other applicant or beneficiary in existence at the time of the hearing;
• g) the applicant’s age at the time of the hearing;
• h) any contribution (financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate or the welfare of the deceased or family of the deceased for which adequate consideration was not received by the applicant;
• i) any provision made for the applicant by the deceased during the deceased’s lifetime or made from the estate;
• j) any evidence of testamentary intentions of the deceased, including evidence of statements made by the deceased;
• k) whether the applicant was being maintained by the deceased before the deceased’s death and (if the court considers it relevant) the extent to which and basis on which the deceased did so;
• l) whether any other person is liable to support the applicant;
• m) the character and conduct of the applicant before and after the deceased’s date of death;
• n) the conduct of any other person before and after the deceased’s date of death;
• o) any relevant Aboriginal or Torres Strait Islander Customary Law;
• p) any other matter the Court considers relevant, including matters in existence at the time the application is being considered.

Where you personally live has no bearing on your claim. The important factor is that the deceased lived in NSW and the deceased owned assets in NSW. A claimant can very easily make a claim from another State without leaving his or her front door. This is a common and frequent situation. What you don’t want is a lawyer acting for you without a thorough knowledge of the law in the State where you are claiming.

You may be able to challenge the validity of a Will if you believe the Will is a forgery or if the person lacked the mental capacity to make a Will. You can also challenge a Will if you believe there was undue influence placed upon the Will maker in the will making process or if there was fraud involved. To research the Intestacy rules for NSW please go to Challenging a Will in our menu bar.

When. Because estate funds can sometimes be sold, transferred or spent, if you are going to make a claim you should do so without delay. Otherwise you may have no assets or funds to claim upon.

Where. You may call any of our offices for assistance. We are also available after normal business hours.

How. We will talk to you about your case and depending upon your wishes immediately attempt to settle your claim before any court action is considered. If the persons named in the Will refuse to settle we will commence court proceeding for you.

For a free case assessment call 1800 90 20 90

Legal costs in family provision cases are at the discretion of the judge however if an order for provision is made for a claimant the claimant’s costs will be paid out of the estate.

If however the claimant’s case is rejected and no order is made in his or her favour he or she may be ordered to pay the costs of the executor defending the proceedings. For that reason alone we recommended you should only seek advice from a specialist lawyer in this field of law.

There is a lot more detail to discuss with you about costs and the variety of costs agreements available to you in these cases including our guaranteed “NO Win No Fees” policy.

For a free case assessment call 1800 90 20 90

Yes, where you are the child of the deceased including an adopted child, you are automatically eligible to apply for family provisions.

Yes, if you are the spouse of the deceased you are automatically eligible to apply for family provisions.

Yes, if you were living in a de facto relationship at the time of your partner’s death you are eligible, however there are many other factors to consider.

An application for a family provision may be made whether or not probate of the will of the deceased person has been granted. However, a court order will not be given for provision until there is a grant of probate or administration (section 58 of the Succession Act 2006 (NSW)).

An application for a family provision may be made whether or not probate of the will of the deceased person has been granted. However, a court order will not be given for provision until there is a grant of probate or administration (section 58 of the Succession Act 2006 (NSW)).

If an applicant can prove to the court that they have what is known as ‘sufficient cause’ for a late application the court may, in certain circumstances can grant an extension of time.Any extension of time is made at the court’s discretion, and only in circumstances where the applicant has provided a ‘sufficient explanation’ or ‘sufficient justification or excuse’ to the court.

A Family Provision order may be made when the court is satisfied of the following:

• The applicant is an eligible person.
• At the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the deceased person.
• There are sufficient funds in the estate or notional estate to provide for the applicant after considering the needs of beneficiaries named in the will.

Yes, but only if there has been a substantial change in the eligible person’s financial circumstances or their health or both since the first order was made.

Yes, but only if at the time of that refusal there was undisclosed property in the estate and the estate would have been much greater in size.

Section 60 of the Succession Act 2006 (NSW) sets out the matters to be considered by the court:

• 1. The nature and duration of the relationship with the deceased;
• 2. The value of the estate;
• 3. The applicant’s financial circumstances;
• 4. The financial circumstances of any other competing party;
• 5. Any obligation or responsibility owed by the deceased to an applicant or any beneficiary of the estate;
• 6. Any physical, intellectual or mental disability of the applicant or beneficiary of the estate;
• 7. The age of the applicant when the application is being heard;
• 8. Any contribution by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, made before or after the deceased person’s death and adequate consideration was not received, by the applicant;
• 9. Any provision made for the applicant by the deceased person during the deceased lifetime;
• 10. Any evidence (documents or statements) of the testamentary intentions of the deceased;
• 11. Whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death;
• 12. Whether any other person is liable to support the applicant;
• 13. The character and conduct of the applicant before and after the death of the deceased;
• 14. The conduct of any other person before and after the death of the deceased;
• 15. Any relevant Aboriginal or Torres Strait Islander customary law;
• 16. Any other matter the court considers relevant.

The following people are eligible to make a claim for provision or further provision from the deceased’s estate: a wife or husband; a de facto wife or husband; a child; an ex-wife or husband; a person who was at one time dependent or partly dependent on the deceased AND who lived in the same household with the deceased; a grandchild of the deceased who was at one time dependant or partly dependant upon the deceased or a person who was in a ‘close personal relationship’ with the deceased person.

No. All eligible persons and all beneficiaries compete against each other for a share of the estate. An eligible person will only be successful if he or she can demonstrate need, a moral obligation owed too him or her by the deceased and so long as there is enough money in the estate to take some from the beneficiaries.

The court proceeds in their absence and does not take their interests into account.

An interim family provision claim is one where a temporary order is asked for prior to the final determination of an application.

The court may make an interim family provision order before it has fully considered the application in full however usually does so only in complex cases. Otherwise the court will most likely just hear the whole case without delay.

The court will eventually hear the case in full and then make an order by confirming, revoking or varying the interim order as soon as possible.

It will not in circumstances where any beneficiary requires a distribution because of a dependency on the deceased or an immediate necessity for his/her maintenance or education.

It will not in circumstances where any beneficiary requires a distribution because of a dependency on the deceased or an immediate necessity for his/her maintenance or education.

• 1. A deceased person’s estate held by the executor following a grant of probate of the will of the deceased
• 2. “Notional estate” held by the executor or held some other person.

Family provision orders can be made in several ways at the discretion of the court;

• 1. As a lump sum of money;
• 2. By periodic payments of money;
• 3. By application of specified existing or future property;
• 4. By way of absolute interest or only limited interest in property;
• 5. By setting aside property as a class fund for the benefit of two or more persons; or
• 6. Any way the courts sees fit.

The court may make ‘consequential and ancillary orders’. The court may in its discretion make these ‘additional orders’ so as to be just and equitable or to adjust the interests of any person affected by the family provision order.

• 1. An order for the transfer of property to an applicant;
• 2. The court may make an order directing a trust in the way the trust may be constituted;
• 3. The court may make an order appointing a trustee of property of the estate;
• 4. The court may order the sale of property of the estate;
• 5. The court may order a person to obtain property for the estate;
• 6. The court may order to transfer property of the estate;
• 7. The court may order a person to manage property of the estate;
• 8. The court may make any other order necessary to properly adjust the provision funds between relevant parties.

You may apply to the court for an order to pay your sister by instalments or some other periodic payment method.

If another applicant is contesting a will in NSW and has a good enough reason a family provision order may be varied or revoked by the court to allow provision for that other applicant. A family provision order may also be revoked if the grant of administration of the estate is revoked or rescinded.

In will contest cases the court has the power to vary or cancel any other orders made for family provision but only to the extent that is necessary as a result of the variation or cancellation. However the court can also make any other necessary orders.

Question: My father died years ago. My mother has left me her house. I am the only child, however in her will her partner of two years is allowed to live there rent free and I am not allowed to sell the house unless he leaves. I am concerned that he will gain rights over the property. Is there anyway that I can prevent this? I would actually like to sell the property and find it very unfair that he has more of a hold over the property than me, even though I have inherited it. Can he contest the will? What rights do I have to contest the will?

Answer:You are an eligible person and entitled to contest a will under family provision legislation and your mother’s partner is also eligible and entitled to claim. The court would have to consider all the circumstances outlined in Section 60 of the Succession Act 2006 (NSW) to determine which of you had the greatest claim. It will depend primarily upon which one of you has the most need for financial assistance.

In Durham v Durham [2010] NSWSC 389 Ball J said at 15:

An extension under that section may only be granted, relevantly, if sufficient cause is shown for the application not having been made within the prescribed period: s 16(3). Assuming that condition is satisfied, the Court has a discretion to grant an extension “having regard to all the circumstances”:s16(2). Matters that the Court should take into account include whether the beneficiaries under the Will would be unacceptably prejudiced if time were extended and whether there has been unconscionable conduct by any of the parties in connection with the delay: Massie v Laundy (7 February 1986, unreported, Young J).

Brereton J in Taylor v Farrugia [2009] NSWSC 801 at [26] said:

Both Salvatore and Emanuela died domiciled in Malta, leaving real and personal property both in Malta and in New South Wales. In those circumstances the relevant law is, as stated by Scholl J in Re Paulin [1950] VLR 462 at 465, that in connection with the application of testator’s family maintenance legislation.

First, the Courts of the domicile alone can exercise jurisdiction under the testator’s family maintenance legislation of the domicile in respect of movable and immovable property in the place of domicile;

Secondly, the Court’s of the domicile alone can exercise such jurisdiction in respect of movable property of the deceased outside the place domicile; but

Thirdly, Courts of the situs alone can exercise such jurisdiction in respect of immovable property of the deceased out of the place of domicile, and Courts of the place of domicile cannot exercise such jurisdiction.

It follows that any order made by this Court can affect only immovable property of the deceased in New South Wales; it cannot affect movable property in New South Wales, nor any property outside the State.

In Ball v Newey (1988) 13 NSWLR 489 Samuels JA at 491 said:

“dependent” in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed.

In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the court said:

The word “dependent” is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things.

In McKenzie v Baddeley (NSWSC, unreported, 3 December 1991), his Honour Mr Justice Meagher …. discussed dependency and described it as “financial, economic or material dependency, not a mere emotional dependency”.

In Dridi v Fillmore [2001] NSWSC 319 at [102] – [104] Macready M considered the elements that need to present in order for two people to be considered to be in a “close personal relationship” as defined under the Property (Relationships) Act , s 5:

I have earlier referred to aspects of what the Act describes as a “close personal relationship”. It has to be between two adult persons who are “living together”. Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a “de facto relationship” concepts relating to a “couple” are not relevant. Instead the definition calls for two different links. The first is that the parties are “living together”. The second is that “one or each of whom provides the other with domestic support and personal care”.

In the 2007 case of Nelligan v Crouch [2007] NSWSC 840 the claimant for provision had been left nothing in the will of the deceased, and, because of the failure of a bequest to the executor, the whole estate was left to the Royal Flying Doctor Service (RFDS). The plaintiff had been the same sex partner of the deceased for a long period of time, though they had for some years been separated by the demands of personal and family illness. The judge determined that they were not living together in the sense of de facto partners, nor were they in a ‘close domestic relationship’ at the time of death. However, he found that the claimant had been part of the deceased’s life for more than 30 years, and that:

‘It was the fact that they lived together for a long time, the fact that the relationship did not cease even though they lived separately and apart after 1997 in the sense that the contact remained and the care and consideration for each other still remained in those years thereafter. There were also the obvious contributions to the property…’

The judge awarded the claimant $100,000 from an estate of approximately $180,000 after costs. The RFDS received the remainder, which represented a third of the original legacy.

Text extracted from: Myles McGregor-Lowndes and Frances Hannah, Every Player Wins a PRIZE? Family Provision Applications and bequests to Charity, October 2008, p28.

Yes, under section 10 of the Family Provision Act 1982 (NSW) which provides:

Where, on an application in relation to a deceased person, the Court makes an order for provision in favour of an eligible person out of the estate or notional estate of the deceased person, the Court may make an order in favour of any other eligible person or any other person by whom, or any purpose for which, property in the estate or notional estate of the deceased person is held or would, but for the order for provision in favour of the eligible person, be held that provision be made in such manner and to such extent as the Court thinks necessary to adjust all the interests concerned and to do justice in all the circumstances.

In Large v Higham (No.2) [2010] NSWSC 560 at 55-56, the court relied on this power to order a legacy in substitution of the remainder interest in the will for a grandchild beneficiary who was not an eligible person.

In Ramsay v Schiller [2012] NSWSC 596 Hallen AsJ made the following judgement:

28. The Defendants submit:

10. The defendants propose that the question whether [the Property] is capable of being notional estate for the purposes of the Act be determined separately and in advance of the other issues in the proceedings.

11. It is the defendants’ position that the Property is incapable of being treated as notional estate for the purposes of the Act….”

The Statutory Scheme and Applicable Principles

30. UCPR rule 28.2 provides that the court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

33. The power of the Court to order the separate determination of a question is discretionary and must be exercised judicially, but is otherwise not fettered. In determining whether to make an order, the Court is under an obligation to seek to give effect to the overriding purpose of the Civil Procedure Act 2005 and of rules of court to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Civil Procedure Act s 56(2).

34. Section 62 of the Civil Procedure Act is also relevant to the determination, as that section provides the court with power to give directions as to the conduct of any hearing, including directions as to the order in which evidence is to be given and addresses made.

The Questions that would arise on the Hearing

42. In the past, a question similar to the one sought to be determined separately has been the subject of an order for a separate hearing. In Flinn v Fearne [1999] NSWSC 1041, Master McLaughlin (as his Honour then was) acceded to an application by the plaintiffs, to which the defendant consented, for the determination, pursuant to Part 31 rule 2 of the Supreme Court Rules, of a separate question before the hearing of the substantive proceedings, such separate question being as to the existence of a prescribed transaction.

43. The separate question, in that case, was in the following form:

“[7] … Whether the deceased entered into a prescribed transaction in regard to the property being the assets of G & K Fearne Family Trust, such that the Court is entitled to designate any property of the G & A Fearne Family Trust notional estate of the deceased.”

44. Although reference is also made in the Defendants’ submissions to Hill v Hill (NSWSC, 13 March 1997 (then written submissions), 19 May 1997, unreported) as an example where a separate question was ordered, in fact, in that case, Young J (as his Honour then was) said:

“…In fact no Judge or Master had ever ordered that any such question be determined as a separate question, and indeed, I dare say no Judge would have made such an order.”

45. Neither of these cases assists me in the determination of what the court should do in the present case…

Determination

46. The real thrust of the Defendants’ argument appears to be that if the separate question is ordered the result will be that the Plaintiffs’ proceedings may be able to be resolved by the parties without the need for a full hearing. The Plaintiffs express a similar view.

47. However, there is no suggestion that the determination of the separate question proposed, if the Defendants’ submissions were to be accepted (i.e. there is no property that could be the subject of a notional estate order) will quell the whole of the controversy between the parties…

48. Alternatively, if the separate question posed resulted in the Defendants’ submissions not being accepted (i.e. there is property that could be the subject of a notional estate order), whether such an order should be made would remain to be decided after some, or all, of the other matters for decision to which I have referred…

52. It follows that the separate determination of the question posed between the parties, and its resolution will neither obviate the necessity of litigation altogether, nor, in my view, substantially narrow the field of controversy. The parties will remain the same at the hearing whatever the result of the determination of the separate question and many of the factual, and other, matters will remain to be decided.

53. In all the circumstances, as a matter of discretion, I am of the view that the notice of motion should be dismissed and I so order.

No. Hallen AsJ said in Fallow v Mullins [2012] NSWSC 406 at 91 “There is no age limit placed on a child making an application or an order being made in her, or his, favour.”

• 1. Who the provision is in favour of;
• 2. The amount of provision;
• 3. The way the provision is to be paid (lump sum, installments or other); and
• 4. The property from which the provision is to be provided.