To “contest a will” generally refers to making a Family Provision Claim. In NSW, the law provides certain eligible individuals with the right to contest a will or their entitlement on intestacy through what’s known as a Family Provision Claim.
Key Takeaways
- Only eligible persons can contest a Will in New South Wales under the Succession Act 2006 (NSW).
- A Family Provision Claim must be filed within 12 months of the deceased’s death.
- Legal advice is crucial to navigate the complexities of contesting a Will.
Understanding Will Contests in NSW
Making a Family Provision claim involves seeking a greater share of the estate. This process is governed by the Succession Act 2006 (NSW), which outlines who can contest a Will and on what grounds. Eligible persons who believe they have not been adequately provided for can file a Family Provision Claim. The court will consider factors like the claimant’s financial needs, relationship with the deceased, and the size of the estate. The key purpose is to ensure that eligible claimants receive adequate and proper provision for their “maintenance, education, or advancement in life”.
Who Can Make a Family Provision Claim?
Not everyone has the legal standing to contest a Will. Under the Succession Act 2006 (NSW), the following individuals are considered “eligible persons”:
The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person –
1. a person who was the spouse of the deceased person at the time of the deceased person’s death,
2. a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
3. a child of the deceased person,
4. a former spouse of the deceased person,
5. a person —
- who was, at any particular time, wholly or partly dependent on the deceased person, and
- 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
6. a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
The Factors the Court Considers
The key purpose is to ensure that eligible claimants receive adequate and proper provision for their “maintenance, education, or advancement in life.
Time Limits for Contesting a Will
In NSW, a Family Provision Claim must be filed within 12 months of the deceased’s death. It is important to seek advice early to find out your rights.
Out of Time Claims
Extensions may be granted in exceptional circumstances, these claims are considered on a case-by-case basis.
The Process of Contesting a Will
Seek Legal Advice: Consult a solicitor experienced in Wills and estates to assess the merits of your case.
Costs Involved
Costs depend on the complexity of the claim. If the matter goes to court, legal fees can be significant. However, in some cases, the court may order that legal costs be paid out of the estate, especially if the claim is successful.
Conclusion
Contesting a Will in NSW is a complex legal process that requires a clear understanding of eligibility criteria and valid grounds.
If you believe you have a rightful claim, it’s crucial to seek legal advice promptly to navigate the process effectively and within the stipulated timeframes. The experienced team at Clarity Lawyers are here to help. Contact us today.
