If you have been left out of a will and thinking about contesting the will, then there are 5 things you must know!
1. Are you an eligible person?
Under Part 3.2 of the Succession Act NSW 2006, section 57 an eligible person is any person who falls into the categories below.
(a) a person who was the wife or husband of the deceased person at the time of the deceased person’s death,
(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
(c) a child of the deceased person,
(d) a former wife or husband of the deceased person,
(e) a person:
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
The category is broad and can include former de facto partners and step children.
Graziani v Graziani (Unreported, Supreme Court, Cohen J, Eq 2678 of 1985, 20 February 1987
2. Generally, you can contest a will if:
(a) The deceased lived in NSW at the date of his or her death and owned assets in NSW or
(b) The deceased lived outside of NSW but owned assets in NSW.
3. You should get copy of the will. The following people are entitled to inspect the will of the deceased person:
(a) any person named or referred to in the will, whether as a beneficiary or not,
(b) any person named or referred to in an earlier will as a beneficiary of the deceased person,
(c) the surviving spouse, de facto partner (whether of the same or the opposite sex) or issue of the deceased person,
(d) a parent or guardian of the deceased person,
(e) any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,
(f) any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
(g) any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
(h) any person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person,
(i) any attorney under an enduring power of attorney made by the deceased person,
(j) any person belonging to a class of persons prescribed by the regulations. Refer to Section 54 of the Succession Act 2006 (NSW).
4. What does the court consider when an application is made to contest a will?
The court has a discretionary duty to consider any of the matters that are found at Section 60(2) (a) –(p).
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
(e) if the applicant is cohabiting with another person-the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) 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, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person 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 date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(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 of the deceased person’s death or at the time the application is being considered.
The factors that can be considered are broad and even if not specified in the legislation, the Court may consider matters it considers relevant, including events that were happening at the time of the deceased person’s death.
5. How much time do you have to contest a will?
If the person died on or after 1 March 2009 in NSW, you have 12 months from the date of their death to contest a will in NSW.
The Court has power to extend that time limit, but will not do so automatically.
You have to provide very good reasons as to why you have not made an application to contest a will within the 12-month time limit.
Section 90 of the Succession Act 2006 (NSW)