Contesting a will
While most people leave their assets to family members and/or life partners, some choose to bequeath estates to friends, charities and specialist causes.
Such decisions often leave family and dependent household members aggrieved and laws are in place for the redress of wrongs.
In NSW, the Succession Act 2006, which came into effect on 1 March 2009, provides new rules for eligible persons’ to contest the Will of a deceased individual.
Eligible persons include:
- The deceased’s spouse at time of death (including de-facto partners, same sex partners and life partners);
- A child of the deceased, or a child of a domestic relationship with the deceased;
- A former spouse of the deceased;
- A person at any time wholly or partly dependent on the deceased;
- A person who is a grandchild of the deceased or was a member of a household of which the deceased was a member.
Under the latest changes to this legislation, an eligible person now also includes a person with whom the deceased was living in a close personal relationship at the time of death. This is defined as the relationship between two adults living together where one provides both domestic support and personal care for the other. It could include a brother and sister living together.
The test for a successful claim has also now changed. For applicants other than spouse (including de facto and same sex partners) or child, they must show “factors which warrant a claim. And in all cases the applicant must show there has been inadequate provision made in the will for that person’s maintenance, education and advancement in life.
Moral obligation is in practice still required though the words don’t appear in the legislation. Where there was estrangement or only occasional contact, moral obligation may not hold.
However, ‘bare paternity’ without a relationship is grounds for a claim.
In 2007, the NSW Court of Appeal found that: “Even if a deceased never knew of the existence of a child, if that child had a strong case based on the other factors (needs, size of estate and lack of competing claims), a court could find that a child was left without adequate provision for proper maintenance.”
A wide range of factors are required to be considered by the court in determining both who is eligible and whether an order should be made.
Divorce revokes any bequest to the former spouse, unless the will makes it clear the bequest is to survive divorce. Likewise marriage revokes a will though there are a number of major exceptions eg a bequest to the person who is your wife at the time of your death will survive. (For more information please see Does marriage or divorce automatically revoke a will?)
Although the legislation does not specifically refer to fraud or undue influence a will can still be challenged on the basis that it is a forgery or the deceased was unduly “lent on” in making the will. Also a court hearing a challenge to a will is required to consider any evidence of the testamentary intention of the deceased.
Interestingly the court may now make an order authorising a will to be made on behalf of a person lacking testamentary capacity.
Where all beneficiaries are adult, have full mental capacity and agree, changes to a Will can be made by a Deed of Family Arrangement.
Family provision claims must be made within 12 months of the date of death, unless the court extends the time.