Contesting a will and considering hardship to the beneficiary
Where the estate is so large that there is, in effect, no hardship to the beneficiary under the will if the court were to order provision for the “advancement in life” of an applicant, provision is not limited to financial needs as measured by the applicant’s current circumstances.
No prescribed formula for contesting a will
There is no prescribed formula for taking into account the matters set out in section 60(2) of the Succession Act 2006 (NSW).
The court’s discretion to extend time for contesting a will
Apart from the reason(s) for the lateness of the claim, the factors to which the court usually looks, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time.
The effect of behaviour of the plaintiff on an order for provision when a will is contested
Associate Justice Macready said on 1 March 2011 that the plaintiff’s ‘callous’ treatment of the testator did not bar her from making a claim but meant that her moral claim on the “testator’s bounty” was reduced.
Onus of proof in establishing a de facto relationship
The onus of establishing a ‘de facto’ relationship for purposes of eligibility to make a claim to contest a will is on the person claiming the relationship. The relationship must be established to have existed ‘on the balance of probabilities’.
Clause in will preventing a claim
When contesting a will Courts have held that a clause in a will which states that a beneficiary will lose their gift under the will if that beneficiary should contest the will is void and will have no effect.
Applicants who may contest a will
In most jurisdictions there are two applicants eligible to contest a will pursuant to family provision legislation. The first applicants are those who are eligible because of their relationship to the deceased. The second are people who have to establish their eligibility to the court and then provide further evidence to support a claim against the will.
Conduct of an Executor
In all states except South Australia, the executor should put all evidence before the court and not merely present financial information and wait for the decision of the court. The evidence to be put by the executor includes information that a beneficiary may want before the court, so that any beneficiary may not need separate representation in the proceedings.
Protection of Legal Personal Representative
When contesting a will a legal personal representative, who distributes an estate pursuant to sealed orders of the court, rather than the provisions of the will, is absolutely protected and, in fact, is liable if he does not act in accordance with those orders.
Ascertainment of beneficiaries
The general rule is that, in a will, where a beneficiary is not specifically named, but referred to by description, such as my daughter’s husband, then the testator intend the gift to be given to the person fitting that description at the time the will was executed. However, if a will is contested, evidence of a contrary intention may be accepted
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