What Makes a Brother Eligible to Contest a Will in NSW?

Although brothers are not automatically eligible to contest a will in NSW, a brother may be able to bring a family provision claim if they satisfy the definition of “eligible person”. 

In NSW, the definition of eligible person is in section 57 of the Succession Act 2006 (NSW). It includes a spouse, de facto partner, child, former spouse, dependant grandchildren, dependent former members of the deceased’s household, and a person who was living with the deceased in a close personal relationship at the date of the deceased’s death. 

The most common way for a brother to establish eligibility is to prove they were a dependent former member of the deceased’s household. This requires the brother to establish: 

(a) That, at some point, they shared a household with the deceased; and 

(b) That, at some point, they were dependent on the deceased. 

While brother eligibility for family provision claims requires the brother to have lived with their deceased brother at some point in their life, this is often easy to prove, and most claims that consider whether the brother is an eligible person under NSW law focus on the nature and extent of any dependency on the deceased.

Alternatively, a brother may be able to establish eligibility by establishing they were living with the deceased in a “close personal relationship” at the date of the deceased’s death. 

Brothers and sisters’ inheritance rights in NSW are the same. 

Grounds for Contesting a Will as a Brother in NSW

Grounds for contesting a will as a brother in NSW may include the following:

• Where the brother was financially dependent on the deceased’s sibling either at the date of the deceased’s death or some earlier date. i.e. being a financially dependent brother. 
• Where the brother was living in the deceased’s house at the date of the deceased’s death. 
• The brother was providing the deceased with care and support prior to the deceased’s death.
• Where the brother had been in receipt of maintenance, payments, or financial support from the deceased sibling prior to their death. 
• Where the brother has financial need or is suffering financial hardship.
• Where there is evidence of a close personal relationship between the brother and the deceased.

The grounds for contesting a will in NSW will depend on the circumstances of the particular case. 

What Evidence Does a Brother Need to Contest a Will?

The evidence and proof used in family provision claims in NSW come in many forms.

In the case of a brother, evidence may include written evidence (an affidavit) and oral testimony, where the brother gives evidence detailing the period(s) during which they lived with their sibling, the nature and extent of the dependency, and other evidence, such as the nature of the relationship between the brother and the deceased sibling.

The brother could then rely on documentary evidence to establish the period of shared residence (such as utility bills) and documentary evidence to establish the nature and extent of the dependency (in the form of bank statements and receipts). The evidence required to contest a will in NSW usually requires clear and documented proof. 

Evidence may also be obtained from other family members, friends and neighbours to establish the period of shared residence or the extent of the dependency. 

An experienced wills and estate lawyer will be able to advise what evidence is appropriate in the circumstances. 

The prospects of success of a claim will be directly impacted by the quality of the evidence. A claim may fail unless it is supported by relevant and admissible evidence. 

Possible Challenges and Outcomes of Contesting a Will as a Brother

A brother may face several key challenges when involved in inheritance disputes in NSW. 

One common challenge is establishing eligibility – that is, that the brother lived with the deceased and at some point in their life was financially dependent on the deceased sibling. A brother may say that their deceased sibling used to give them cash, but it is often hard to prove these types of transactions unless there were other witnesses to the transaction. By contrast, it is much easier to establish payments if they were made via bank accounts and there are corresponding debits in the brother’s bank account and credits in the deceased’s bank account. 

Another common challenge is that the brother’s claim on the estate may not be the only claim. There may be claims by arguably closer relatives, such as a spouse, de facto partner or children. 

Another challenge a brother may face is the risk of legal costs if unsuccessful. If the brother is unsuccessful in establishing one or more of the three criteria, their claim may be refused, and they may be ordered to pay the legal costs of the estate in defending the claim, in addition to paying their own legal costs. Costs in a Supreme Court of NSW will contest cases can be significant. 

One way to avoid or mitigate these challenges is to attempt to negotiate an outcome before commencing formal court proceedings. In some cases, the brother may be able to produce sufficient evidence to persuade the executor and any other relevant beneficiaries to negotiate an outcome whereby the brother receives a larger share and if an agreement can be reached, it can avoid the delays and costs of court proceedings. 

Even if formal court proceedings are commenced, the parties will be required to attend mandatory family provision mediation. In NSW, mediation involves the parties meeting with an independent mediator and attempting to resolve the dispute through the making of offers and counteroffers. If the dispute is resolved at mediation, the agreement can be formalised bringing an end to the dispute. If an agreement cannot be reached, the family provision claim may proceed to final hearing unless withdrawn earlier.

Although Supreme Court of NSW will disputes are common, claims by brothers are relatively rare. Claims by brothers present a range of contesting a will outcomes in NSW, and the likelihood of any outcome will depend on the facts and circumstances of the particular case. 

Can You Contest a Will as a Brother? Contact Empower Wills and Estate Lawyers

Strict time limits apply to family provision claims in each State of Australia. Any person considering a family provision claim should seek immediate legal advice regarding what time limits apply in the relevant jurisdiction.

If you are considering contesting a sibling’s will, or are considering making provision for siblings in wills, and would like to speak to a will dispute lawyer in Sydney, contact Empower Wills and Estate Lawyers in Sydney, NSW now on 1300 414 844 to speak to one of our experts. 

Empower Wills and Estate Lawyers are leading family provision lawyers in Sydney and have extensive experience in deceased estate disputes in NSW, inheritance disputes in NSW, will contests and family provision claims, including claims by brothers and sisters. 

Liability limited by a scheme approved under Professional Standards Legislation.

Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.