Contesting a Will - Family Provision
When a loved one passes away, their Will is meant to reflect their final wishes, including how their assets and estate should be distributed. However, in some cases, a Will may fail to make adequate provision for someone who was dependent on or closely connected to the deceased. In such circumstances, a person may be able to make a Family Provision Claim under the Succession Act 2006 (NSW).
What is a Family Provision Claim?
A Family Provision Claim is an application made to the Supreme Court of NSW by a person who believes they have not been adequately provided for in a deceased person’s Will, or under the rules of intestacy if there is no Will.
The purpose of such a claim is not to challenge the validity of the Will itself, but rather to seek a fair share of the estate based on financial need and moral obligation.
Who Can Make a Family Provision Claim?
Section 57 of the Succession Act 2006 (NSW) outlines who is eligible to make a Family Provision Claim. Eligible persons include:
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The spouse of the deceased at the time of their death;
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A former spouse of the deceased;
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A de facto partner of the deceased at the time of death (including same-sex partners);
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A child of the deceased (including adopted children);
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A person who was wholly or partly dependent on the deceased and who is:
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A grandchild of the deceased, or
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A member of the deceased’s household;
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A person with whom the deceased was living in a close personal relationship at the time of death.
What Does the Court Consider When Deciding a Claim?
Under section 60 of the Succession Act 2006 (NSW), the Court takes into account a range of factors when determining whether to make a family provision order, including:
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The relationship between the applicant and the deceased;
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Any obligations or responsibilities the deceased had toward the applicant;
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The financial needs and resources (including earning capacity) of the applicant;
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The size and nature of the deceased’s estate;
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The age, health, and future financial prospects of the applicant;
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Any disabilities affecting the applicant;
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Contributions (financial or non-financial) made by the applicant to the deceased’s estate or welfare;
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Whether any provision was already made during the deceased's lifetime;
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The character and conduct of the applicant;
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Any other relevant matters the Court considers appropriate, including community standards of what is fair and reasonable.
The Court’s role is to ensure that adequate provision is made for the proper maintenance, education, or advancement in life of eligible applicants, having regard to all circumstances.
Time Limits for Making a Family Provision Claim
A Family Provision Claim must be filed within 12 months from the date of death of the deceased.
In limited circumstances, the Court may allow a claim to be made outside this time limit, but only if there is a sufficient reason for the delay. It is therefore crucial to seek legal advice as soon as possible if you believe you may have grounds for a claim.
How Can We Help?
We act for claimants (seeking provision or further provision) and estates who may be defending a claim against the Estate.
If you believe you’ve been left without adequate provision from a Will or intestate estate, or if you’re an executor facing a potential claim, our experienced team can provide you with clear, compassionate, and strategic legal advice.
Challenging a Will in NSW – Grounds for Invalidity
While many people are aware of Family Provision Claims, there are other legal grounds on which a Will can be challenged or contested in New South Wales. These challenges focus on whether the Will itself is legally valid rather than whether it is fair or provides adequately.
Below are the key reasons a Will may be challenged, along with a brief explanation of what is required to pursue such a claim.
1. Lack of Testamentary Capacity
To make a valid Will, the person making the Will (known as the testator) must have testamentary capacity at the time the Will is made.
This means the testator must:
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Understand the nature and effect of making a Will;
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Know the general extent of their assets;
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Comprehend who might reasonably expect to benefit from their estate;
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Not be affected by any mental illness or disorder that influences their decisions.
A Will can be challenged if there is evidence that the testator did not have capacity at the time the Will was signed, for example, due to dementia, Alzheimer's disease, or another cognitive impairment.
Evidence from medical professionals, witnesses to the Will, or those close to the deceased is typically required to support such a claim.
2. Undue Influence
A Will may be declared invalid if the testator was subjected to undue influence, meaning pressure or coercion that overbore their free will.
This may arise where:
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A vulnerable person is pressured by a caregiver, family member, or friend to change their Will;
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The testator is isolated or dependent on the influencer;
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The resulting Will seems suspicious or inconsistent with prior wishes.
Undue influence is a serious allegation, and the person challenging the Will must provide convincing evidence that the testator’s decisions were not made freely and voluntarily.
3. Fraud or Forgery
A Will can also be challenged on the basis of fraud or forgery. This may include situations where:
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Someone misled or deceived the testator into making certain provisions in the Will;
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The testator was tricked into signing a document without knowing it was a Will;
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The Will was forged or altered without the testator’s knowledge or consent.
In these cases, the person contesting the Will must provide evidence to prove that deception or falsification occurred.
4. Duress
Unlike undue influence, which involves subtle pressure, duress refers to situations where the testator was subjected to threats, intimidation, or actual violence in order to force them to make or change a Will.
Wills made under duress are not considered to reflect the testator's true intentions and may be invalidated by the Court if sufficient evidence is presented.
5. The Will Was Not Properly Executed
In NSW, a Will must comply with certain formal requirements under the Succession Act 2006 (NSW) to be legally valid. These include:
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The Will must be in writing;
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It must be signed by the testator;
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The signature must be made or acknowledged in the presence of two witnesses;
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The witnesses must also sign the Will in the presence of the testator.
If these formalities are not followed, the Will may be deemed invalid unless the Court is satisfied that the document was intended to operate as the testator's Will under a dispensing provision in the Act.
What Is Required to Challenge a Will?
To challenge the validity of a Will (on any of the above grounds), the person bringing the claim must:
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Have standing, usually as a person with an interest in the estate (e.g., a beneficiary under a previous Will or someone entitled under intestacy laws);
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Gather relevant evidence, which may include medical records, previous Wills, witness testimony, and expert reports;
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Act promptly, as delays can prejudice your rights, especially once a Grant of Probate has been issued or the estate has been distributed.
Legal advice is essential, as these matters are often complex and emotionally charged. If you believe a Will was made under suspicious or invalid circumstances, it’s important to seek guidance early.
If you believe it may be appropriate to challenge a Will, please get in touch.
