If you have been left out of a Will, or you believe you are entitled to more from the estate than you receive, we can help.
Did your loved one not have capacity at the time of making their Will? Were they under pressure? You may be able to challenge their Will. In NSW, claims for provision or a greater share of a deceased person’s Will are called Family Provision Claims and the relevant legislation is the Succession Act 2006 (NSW) (“the Act”).
Family Provision Claims
You can make a family provision claim if you are an eligible person (as defined in the Act) and have been left out of a Will, or did not receive what you thought you were entitled to receive. In the case of an intestate estate (where there is no Will), the Act also sets out who is a beneficiary and entitled to a share of the deceased estate.
We can help you work through this process and determine if you’re an eligible person and assist and advise you on what is involved in making a claim. There are strict time limits that apply when making a claim so it is important to get legal advice as soon as possible.
Lack of Capacity
If you believe that at the time of making their last Will, the deceased did not have the mental capacity to make a Will, you may wish to consider challenging the validity of the Will. This will require evidence about the deceased’s mental capacity around the time of making the Will which shows that they did not understand or have the capacity to make a Will at that time.
Where a person may have been influenced by another person to make a Will which did not reflect their true wishes, a Court may find that they have been unduly influenced and declare that Will to be invalid. For example, this type of claim can occur when a family member or friend assisted with the preparation or execution of the Will.
How do I stop someone from making a Family Provision Claim on my Will?
If you are worried that an estranged child, grandchild, previous partner, or a dependant may make a claim on your Will, there are steps that can be taken to protect your wishes at the time of preparing your Will. For more information on Wills, click here.
Contesting A Will FAQs
Family provision claims are commonly referred to as contesting a Will. Specifically, making a family provision claim refers to where an eligible person makes a application to vary the provision made under the Will or on intestacy when they feel like they have been left out, or not received their fair share of the Estate.
To make a claim, you must be an ‘eligible person’, being:
- a person who was the spouse of the deceased at the time of the deceased’s death,
- a person with whom the deceased was living in a de facto relationship at the time of the deceased’s death,
- a child of the deceased,
- a former spouse of the deceased,
- a person:
- who was, at any particular time, wholly or partly dependent on the deceased, and
- who is a grandchild of the deceased or was, at that particular time or at any other time, a member of the household of which the deceased was a member,
- a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.
Generally, an eligible person must commence their claim in the Supreme Court of New South Wales within 12 months after the date of death. This time limit can be extended in very limited circumstances. If you think you may have a claim, you should obtain legal advice urgently.
The Court looks at many factors, including but not limited to the assets of the Estate, the financial circumstances of all parties, the relationship between the parties and the deceased, contributions made to the deceased’s Estate and any other relevant factors. This is not an exhaustive list and every matter is considered on a case by case basis, so it is important to obtain legal advice regarding making a claim.