Who Can Contest a Will in NSW
Only an ‘eligible person’ can contest a will in New South Wales (NSW).
‘Eligible person’ is defined in section 57 of the Succession Act 2006 (NSW) and includes a spouse, de facto partner, child, former spouse, a wholly or partly dependant grandchild or member of the deceased’s household, or those with whom the deceased person was living in a close personal relationship at the time of the deceased’s date of death.
In the case of a former spouse, a wholly or partly dependent grandchild or member of the deceased’s household, or those with whom the deceased person was living in a close personal relationship at the time of the deceased’s death, the person must also show that there are ‘factors which warrant the making of the application’ to constitute an eligible person in relation to the deceased estate. In other words, there is an additional threshold that applies to these applicants.
Once a person is found to be an ‘eligible person,’ and a grant of probate is obtained, the second step is to consider whether adequate provision for the maintenance, education, or advancement in life of the eligible person has not been made by the will of the deceased person.
Spouse of the Deceased
A wife or husband of the deceased person at the date of the deceased’s death is eligible to seek a family provision order and act as an executor if named in the will.
This includes both heterosexual and same-sex couples.
A married person remains a husband or wife in spite of separation. However, in some circumstances, where for instance there has been a separation and a property settlement under the Family Law Act 1975 (Cth) the court may consider a claim in the same light as a ‘former spouse.’
A married person remains a husband or wife until there has been a decree absolute.
De Facto Partner
A de facto partner is eligible to make a family provision order.
A person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 (NSW) or the person is in a ‘de facto relationship’ with the other person.
The definition of a ‘de facto relationship’ is contained in section 21C of the Interpretation Act 1987 (NSW) and includes two people who have a relationship as a couple living together and they are not married to one another or related by family.
Unlike a marriage or a registered relationship, a ‘de facto relationship’ is not established by any form of registration but instead must be proved as a question of fact based upon the actions and intentions of the parties and includes consideration of any of the following matters that are relevant in a particular case:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of property;
(f) the degree of mutual commitment to a shared life;
(g) the care and support of children;
(h) the performance of household duties;
(i) the reputation and public aspects of the relationship.
A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else, .
A Child of the Deceased
A child of the deceased is eligible to seek a family provision order and may be a beneficiary under the will.
The definition of child in section 3(2) of the Succession Act 2006 (NSW) is limited and provides that a reference to a child in the Succession Act 2006 (NSW) includes a child who is born after the deceased person’s death after a person of gestation in the uterus that commenced before the person’s death and survives the person for at least 30 days after birth.
Otherwise whether or not one person may be regarded as the child of another is a question that must be determined by reference to other legislation.
Where the testator was in a de facto relationship or a domestic relationship, the definition of child includes ex nuptial children, adopted children, children presumed by law to be children of the deceased, and children who the deceased had parental responsibility within the meaning of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
The definition of child does not extend to a child who is born by IVF many years after the deceased’s death, nor in some cases to foster children, but a foster child may be an eligible person under section 57(1)(e) as a person dependent upon and a member of the deceased’s household.
Former Spouse of the Deceased
A former spouse of the deceased is an eligible person under section 57(1)(d) of the Succession Act 2006 (NSW) but section 59(1)(b) requires a court to be satisfied that there are ‘factors warranting the making of an application’.
A former husband or wife refers to a person to who the deceased was married but was divorced from at the time of the deceased’s death. A married person remains a husband or wife until there has been a decree absolute.
Grandchildren
A person who is a grandchild of the deceased is an eligible person under section 57(1)(e) of the Succession Act 2006 (NSW) and is able to make a claim if they were, at any particular time, wholly or partly dependent on the deceased person, and can satisfy a court that there are ‘factors warranting the making of an application’.
Dependency can include financial and/or emotional dependency.
Member of the Deceased’s Household
A person who was at that time, or at any other time, a member of the household of which the deceased person was a member is an eligible person under section 57(1)(e) of the Succession Act 2006 (NSW) if they were, at any particular time, wholly or partly dependent on the deceased person, and can satisfy a court that there are ‘factors warranting the making of an application.’
The persons who typically falls into this category are step-children and former de facto partners.
Dependency can include financial and/or emotional dependency.
Close Personal Relationship
A person with whom the deceased was living in a ‘close personal relationship’ at the time of the deceased person’s death is an eligible person if they can satisfy a court that there are ‘factors warranting the making of an application.’
The term ‘close personal relationship’ is defined in section 3(3) of the Succession Act 2006 (NSW) as a relationship “…(other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.”
The relationship requires the provision of both domestic support and personal care and the existence of only one is insufficient.
There is no requirement that the relationship be physical or sexual.
Who Is Not Eligible To Contest a Will in NSW?
A person who does not fall within the definition of ‘eligible persons’ in section 57 of the Succession Act 2006 (NSW) is not entitled to contest a will in NSW or bring forth a family provision claim.
Although it is worthwhile noting that a person who is not an ‘eligible person’ for the purposes of a family provision claim under section 59 of the Succession Act 2006 (NSW) may still be eligible to challenge a will on grounds including undue influence, fraud, suspicious circumstances, the testator’s lack of testamentary capacity, and issues related to probate.
If you have a question about whether you are an eligible person to contest a will, or if you are within 12 months from the date of death and considering contesting a will, contact us now on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation.
Want to learn more?
Read more about why it is important to have a valid will here.
Read more about how to contest a will here.
Read more about considering mediation when contesting a will here.
Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. 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 and circumstances.
Frequently Asked Questions
What is a family provision claim, and who can make a claim in NSW?
A family provision claim, referred to as a family provision claim, is a legal process in NSW where eligible individuals, such as a spouse, de facto partner, adult child, stepchild, or someone who lived with the deceased, can seek provision out of the estate of the deceased. To make a family provision claim, the applicant must show that they were not adequately provided for in the will, considering their financial position and relationship with the deceased. Claims must be lodged within 12 months of the date of death, and the court will look at whether the deceased had a moral duty to provide for the applicant.
How does undue influence affect the process of contesting a will?
Undue influence can significantly impact the process of contesting a will. A claim of undue influence arises when it is believed that the deceased was coerced or manipulated into making a will that does not reflect their true intentions. If a claim of undue influence is successful, the will may be invalidated. The court will look at the mental capacity of the deceased at the time of making the will, and whether there was any fraud or undue influence exerted on them. This type of challenge can be complex and may require substantial evidence.
What are the time limits to bring a claim against a deceased estate in NSW?
In NSW, a family provision claim must be made within twelve months of the date of death to lodge a claim. However, the ideal time frame to bring a claim is within six months from the date of death. This time limit is crucial, as claims made outside this period may not be considered by the court unless there are exceptional circumstances. It is essential for potential claimants to act promptly and seek legal advice to ensure they do not miss this deadline.
How can mediation help resolve disputes over a deceased person’s estate before going to court?
Mediation can be an effective way to resolve disputes over a deceased person’s estate without the need to go to court. During mediation, the parties involved in the dispute, including beneficiaries and those making a family provision claim, work with a neutral mediator to reach a mutually acceptable agreement. Mediation can save time, reduce legal costs, and provide a less adversarial environment to discuss the issues. If an agreement is reached, it can be formalised and become binding, avoiding the need for a court hearing.
What are notional estate provisions, and how do they impact claims against an estate in NSW?
If a claim is made against the deceased person’s estate, a beneficiary should seek legal advice immediately. The process of contesting a will can impact the size of the estate and the provision out of the estate for other beneficiaries. Beneficiaries should understand their rights and the potential outcomes if the claim is successful. Legal costs associated with defending the claim are typically paid out of the estate. It’s important for beneficiaries to engage with the executor and legal representatives to understand the grounds of the claim and the likelihood of success. Mediation may also be a viable option to resolve the dispute amicably.
