Contesting a will in NSW: who can make a family provision claim and how it works

If you have been left out of a will, or not properly provided for, the law lets certain people ask the court for a share of the estate. Here is who qualifies, the deadline that applies, and what the court weighs up.

Key takeaways

•  A family provision claim asks the Supreme Court of NSW to award you a share, or a larger share, of an estate when you have been left without adequate provision.

•  Only an eligible person can claim. That includes spouses, de facto partners, children, former spouses, and certain dependants and close relationships.

•  You have 12 months from the date of death to file. The court can extend that only where you show sufficient reason for the delay.

•  The court weighs the size of the estate, your financial need, your relationship with the deceased, and any competing claims.

•  NSW notional estate rules can pull assets back into the estate, such as jointly held property or gifts made before death.

When someone close to you dies and the will leaves you with little or nothing, you are not always stuck with that outcome. Under the Succession Act 2006 (NSW), certain people can ask the Supreme Court of NSW to order provision, or larger provision, out of the estate. This is called a family provision claim, and it is the process most people mean when they talk about contesting a will.

It is worth being clear about the language. Contesting a will and challenging a will are two different things, and they run on different rules. A family provision claim accepts that the will is valid but argues you were not adequately provided for. Challenging validity is a separate argument that the will itself should not stand, for reasons such as the will-maker lacking capacity or being pressured. This article deals with the first of those, the family provision claim.

The rules are specific about who can claim, how long they have, and what the court looks at. Getting any of those wrong can cost you the claim before it is heard, so it pays to understand them early.

To help you prepare, we have put together a free Family Provision Claim Checklist covering eligibility, the deadline and the evidence to gather. You can download it at the end of this article and bring it to your first appointment.

Contesting a will is not the same as challenging its validity

A family provision claim does not say the will is wrong. It accepts the will and asks the court to adjust what you receive because the will-maker did not leave you adequate provision for your maintenance, education or advancement in life.

Challenging validity is a different case. There you are arguing the will should be set aside, on grounds such as the deceased not having mental capacity when they signed it, being unduly influenced, or the document not being executed properly. If a validity challenge succeeds, an earlier will or the intestacy rules apply instead.

The two can overlap in practice, but they are decided on different tests. If you are unsure which applies to your situation, take advice before you do anything, because the deadlines and evidence you need are not the same.

Who can make a family provision claim

You can only bring a claim if you are an eligible person under section 57 of the Succession Act. The categories are:

1.  The spouse of the deceased at the time of death.

2.  A person who was living with the deceased in a de facto relationship at the time of death.

3.  A child of the deceased.

4.  A former spouse of the deceased.

5.  A person who was, at any time, wholly or partly dependent on the deceased and who is a grandchild of the deceased or was, at any time, a member of the deceased’s household.

6.  A person with whom the deceased was living in a close personal relationship at the time of death.

The first four categories can claim on the strength of the relationship alone. The last two need to show more. A dependent grandchild or household member, and a person in a close personal relationship, must also satisfy the court that there are factors warranting the claim being made. In plain terms, the court needs a reason to treat you as though you were a natural object of the deceased’s responsibility.

The 12-month deadline, and when the court will extend it

You must file a family provision claim within 12 months of the date of death. This is set by section 58 of the Act, and it is strict. Miss it and your claim is out of time.

The Supreme Court can allow a late claim, but only where you show sufficient cause for the delay. That is not a formality. You will need to explain why you did not claim in time, and a weak explanation will not get you across the line. If the estate has already been distributed, a late claim becomes harder again, because there may be nothing left to make provision from.

The practical point is simple. If you think you have a claim, get advice well inside the 12 months rather than close to the edge of it. Building the evidence and attempting to resolve the matter both take time.

What the court takes into account

Being eligible gets you through the door. It does not win the claim. The court then decides whether the will left you without adequate provision, and if so, what provision should be made. Section 60 of the Act sets out the matters the court can consider, and they include:

•  The nature and length of your relationship with the deceased.

•  Any obligations or responsibilities the deceased owed to you.

•  The size and nature of the estate, including any notional estate.

•  Your current and likely future financial needs and resources.

•  The financial circumstances of anyone you live with.

•  Any physical, intellectual or mental disability you or another beneficiary has.

•  Your age, and any contribution you made to the deceased’s estate or welfare.

•  Any provision the deceased made for you during their life or from the estate.

•  The character and conduct of the applicant, and any other matter the court considers relevant.

No single factor decides the outcome. The court looks at the whole picture and asks what a wise and just will-maker would have done in the deceased’s position. That is why two claims with similar facts can end very differently.

Notional estate: assets the court can pull back in

NSW is unusual. Its notional estate rules let the court treat certain assets as part of the estate even though they passed outside the will. This matters where an estate looks small on paper because assets were moved before death or held in a way that avoided the will.

Examples include property held as joint tenants that passed automatically to the survivor, assets moved into a family trust or company, and gifts made in the period before death. If the court is satisfied the arrangement defeated a family provision claim, it can designate those assets as notional estate and make provision from them. This is a large part of why an estate that appears to have nothing in it is not always the end of a claim, and why these matters need careful advice.

What about superannuation?

Superannuation usually does not form part of the estate. It is held by the fund trustee and paid according to any binding death benefit nomination, or at the trustee’s discretion, rather than under the will. That means super often sits outside a family provision claim from the start.

There are two things to check. First, whether a valid binding nomination exists, because that largely controls where the money goes. Second, whether the super, once paid, could be brought back in as notional estate. Both turn on the detail, so do not assume super is either in or out until it has been looked at properly.

How these claims usually resolve

Most family provision claims settle before a final hearing. The Supreme Court requires the parties to attempt mediation, and a large share of matters are resolved there. A negotiated outcome is usually faster, cheaper and less stressful than a contested hearing, and it keeps the decision in the hands of the people involved rather than a judge.

Costs are a real consideration. While costs in successful claims are often paid from the estate, that is not guaranteed, and a claim that fails can leave you exposed. Honest advice about the strength of your claim at the outset is worth more than optimism.

Working with & Legal

Family provision claims are decided on their facts, and the 12-month deadline does not wait. If you have been left out of a will, or you are an executor facing a claim against an estate, the sooner you get advice the more options you have. Our team can assess whether you are an eligible person, weigh the strength of the claim, and work towards a resolution without the cost of a drawn-out fight. Contact us to arrange a consultation.

Download our free Family Provision Claim Checklist to work through your eligibility, the deadline and the evidence to gather before you seek advice.

Frequently asked questions

This article is general information only and does not constitute legal advice. Family provision claims turn on individual circumstances and the law can change. You should obtain advice tailored to your situation before acting. & Legal, Sydney.