Contesting a Will FAQ's

The following are quick links into section of this article for major reference points:

 

A Simple Approach to Contesting a Will: Why I am not entitled Claim?

It is generally accepted that when a person passes away they have a right to leave their property to whomever they wish, and for this reason they create a Will leaving their final wishes and directions as to how to distribute their property. In most cases the deceased will leave that property to family, namely children, spouses, life partners or parents, but in those cases where the estate has been left to third parties such as doctors, friends, a single child, charities or someone outside the immediate family, there is an avenue certain family members, or dependant members of the household, can pursue to ensure they get what they rightly deserve.

The Family Provisions Act 1982 (NSW) allows a number of 'eligible persons' to contest the Will of a deceased person. These 'eligible persons' are:

a) The wife or husband of the deceased person at the time of their death (this includes de-facto partners and life partners).

b) A child of the deceased, or a child of a domestic relationship with the deceased

c) A former wife or husband of the deceased

d) A person:

(i) who was, at any particular time, wholly or partly dependent upon 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 a household of which the deceased person was a member

To bring an action against the estate of a deceased person, you must fall within one of the above categories of 'eligible persons'.

Is this all that must be established for a valid Family Provisions Claim?

Once you have established that you are and eligible person, you must show to the Court that there is some reason, some need that will warrant the court changing the last Will and testament of a deceased person and give you some financial benefit. You must also show to the Court that given your relationship to the deceased person, there is a moral obligation on them to provide for your maintenance, education and advancement in life.

In essence, what has to be established is that given your financial situation and position in life, the deceased should have provided you with a legacy so as to allow you to have a better standard of living that given your financial situation and position in life, the deceased should have provided you with a legacy that will allow you to struggle less in life or maybe provide a better life for your own family.

If you are an 'eligible person' and there is a moral obligation on the deceased to provide for your maintenance, education and advancement in life, the Court will review your financial situation, and if need is established, alter the last Will and testament of a deceased.

When is Moral Obligation determined?

If you are a spouse, life partner or de-facto of the deceased, upon proving the relationship, moral obligation is assumed. This assumption also applies to children, adopted children or children of a de-facto relationship the deceased was in at the time of death. However this assumption can be removed if it is identified that the deceased and the claimant were estranged and there is no need warranting an award.

If it can be shown to the Court that some contact was maintained between yourself and the deceased, however occasional, this may satisfy the test which places a moral obligation on the deceased to provide for your maintenance, education and advancement in life.

It is noted that in the matter of Nicholls v Hall & Ors [2007] NSWCA 356, a recent decision of the New South Wales Court of Appeal, 'Bare Paternity' was determined to be sufficient to warrant an award under the Family Provisions Act. Justice Young on 12 December 2006 found that:

"Accordingly, the picture painted by the evidence, which I accept, is that the plaintiff had no contact with his father for the first 36 years of his life. Thereafter there were 11 telephone calls in eight years. There was no exchange of presents at birthdays or Christmas, not even an exchange of cards. The plaintiff only ever saw the deceased on two days in 1995. He did not see the deceased at all nor make any contact with him for the last two years of the deceased's life and he never attended the funeral. Furthermore, he appears to have given an excuse for not attending the funeral which was not genuine."

Their Honors Mason P, Hodgson JA and McColl JA on 13 December 2007 found that:

"In assessing the strength of moral claims, the Court can have regard to (1) all aspects of the relationship between the applicant and the deceased, and (2) all aspects relating to needs of the applicant. These matters would be considered having regard also to (3) the size and nature of the estate, and to (4) other legitimate claims on the estate, each of which would also involve some consideration of the relationship of a claimant to the deceased and the needs of that claimant. When a moral claim has been assessed in that way, that does not determine whether an order should be made, but only informs what the Court would find to be "adequate" and "proper". Certainly, in our opinion, a finding that an applicant has been left without "adequate provision" for "proper maintenance" does not necessarily mean that the deceased failed in any obligation; although it can loosely be expressed in terms that there was a moral claim that, in the event, was not met.

There are some statements in the cases that could be understood as meaning that, if there is nothing more than "bare paternity" in factor (1), the relationship between the applicant and the deceased, then the applicant cannot succeed. In our opinion, such an understanding would be plainly wrong. Even if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors (that is, needs, size of estate and lack of competing claims), a court could find that that child was left without adequate provision for proper maintenance."

Essentially, if you have been estranged from your family for various reasons, or the deceased did not even know of your existence, this does not prohibit you from making a claim under the Family Provisions Act. Existence or non-existence of a relationship with the deceased is not the deciding factor in claims on the estate of a deceased.

You must prove to the Court, that given the size of the estate, the competing claims on the estate and your financial and medical situation, the Court should determine that provision be made for you from the estate. We must prove your financial situation along with all medical and education needs, and we must also attempt to outline to the Court the financial situation of all other persons who may have a claim on the estate of the deceased.

Once all these factors have been taken into consideration the Court will determine if the needs of the estranged child are sufficient to warrant the Court altering the last Will and testament of the deceased.

What factors are taken into account when the Court is determining Need?

In Family Provision Act claims, the Court attempts to identify if the maintenance, education and advancement in life of an applicant has been provided for under the terms of the Will of the deceased. The Court will then look at a person's current finances, such as mortgage repayments, rental situation, age of vehicle and household appliances, child education needs or tertiary educations needs, medical expenses and prospective future medical expenses. In essence, the Court will look into an applicant's whole situation and identify that given their current financial situation and need for future expenses, be it personal or medical, the Will of the deceased should be altered to make an award for the applicant.

The Court will not always alter the Will of a deceased. If your children go to a private school, you have employment, you own the majority of your home and you do not have any ongoing medical needs, it is unlikely that a Court will award that the Will of the deceased be altered. However, if you are renting, your children go to public schools and you are receiving a low income or receive government benefits, it is likely that a Court will alter the Will of the deceased.

These are two examples of the higher and lower end of Family Provisions Claims. Each case is determined on its own facts; the applicant must establish that they have a need warranting the Court to make provision for them from the estate.

Can a Step Child make a Family Provisions Claim?

Step Children do not have an automatic right to approach the Court for provision from the estate of a deceased parent; they are not automatically 'eligible persons'.

Step Children are not prohibited from making a Family Provisions Claim, however they must establish that they are an 'eligible person', namely that they are:

A person

(i) Who was, at any particular time, wholly or partly dependent upon the deceased person, and

(ii) Who was at that particular time or at any other time, a member of a household of which the deceased person was a member

What must be established here is that such a person was dependant on the deceased.

If it can be shown that you are dependent on the deceased, and you were at some point in time, part of the deceased?s household, you may be able to succeed in a Family Provisions Claim.

My Grandparent passed away, can I claim on their estate?

Grandchildren do not have an automatic right to approach the Court for provision from the estate of a deceased grandparent; they are not an automatic 'eligible persons'.

Grandchildren are not prohibited from making a Family Provisions Claim, however they must establish that they are an 'eligible person', namely that they are:

A person

(i) Who was, at any particular time, wholly or partly dependent upon the deceased person, and

(ii) Who is a grandchild of the deceased person

What must be established here is that such a person was dependant on the deceased. This means both a financial and emotional dependency, however generally an award will only be made when the role of the grandparent is more akin to a parental role. Occasional financial gifts do not qualify.

If it can be shown that you are dependent on the deceased, and you were a grandchild of the deceased, you may be able to succeed in a Family Provisions Claim.

What elements are needed to establish dependency?

Generally the Court will look at the financial dependency of an applicant on the deceased. This ranges from paying for education to regular purchase of clothing or some other form of monetary assistance.

The Courts have determined that financial assistance is the most common form of dependency however recent decisions have identified that emotional dependence will be taken into consideration.

In Ball v Newey (1988) 13 NSWLR 489, Samuels JA said:

"While it is true that here we are concerned with financial dependency and not emotional dependence, the whole relationship between the appellant and the deceased must be examined"

In Petrohilos v Hunter (1991) 23 NSWLR 559, Hope A-JA said:

"The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that "'?Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed"."

"Surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense, they are valueless, is simply wrong."

"The same considerations apply to a step-child or his or her step-mother, when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example, by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period"

If it can be shown that you are dependent on the deceased you may be able to succeed in a Family Provisions Claim. There are many forms of dependency and each case is determined on its own facts the applicant must establish that they have a particular dependency warranting the Court to make provision for them from the estate

My Uncle passed away, can I claim on his estate?

Nieces and nephews do not have an automatic right to approach the Court for provision from the estate of a deceased uncle or aunty; they are not automatic 'eligible persons'. They must establish that they are an ?eligible person?, namely that they are:

A person

(i) Who was, at any particular time, wholly or partly dependent upon the deceased person, and

(ii) Who was at that particular time or at any other time, a member of a household of which the deceased person was a member

What must be established here is that such a person was dependant on the deceased and part of their house hold. If it can be shown that you are dependent on the deceased, and were at some point in time part of their household, you may be able to succeed in a Family Provisions Claim.

My Friend passed away, can I claim on their estate?

Friends do not have an automatic right to approach the Court for provision from the estate of a deceased parent; they are not an automatic 'eligible persons'. They must establish that they are an 'eligible person', namely that they are:

A person

(i) Who was, at any particular time, wholly or partly dependent upon the deceased person, and

(ii) Who was at that particular time or at any other time, a member of a household of which the deceased person was a member

What must be established here is that such a person was dependant on the deceased and part of their house hold.

I was promised something before they passed away, but I was not included, or sufficiently cared for in their Will.

There may be times when a deceased person, prior to death, made a promise to you, that in return for a service (generally care in old age or some other form of maintenance), a particular item or monetary sum would be left to you in their Will. This situation forms a Constructive Trust, and where you have suffered detriment in upholding your side of the bargain, such as time and labour, and the detriment is proven, the Courts have determined that the bargain is valid and you will be entitled to the variation of the Will.

My Step Mother and Father had similar Wills, she has now changed hers.

There may be situations where in anticipation of death a parent and a step parent make Mutual Wills. Their Wills are made in contemplation of each other and have identical terms and paragraphs. This is done in protection of the step children. The Courts have recognised that this is a contractual agreement between the deceased and the step parent, an agreement that cannot be altered as the subjects of the agreement, namely the children, are still alive.

In this situation, the new Will of the step parent will be challenged in its entirety and generally the previous Will is enacted.

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