Can I challenge a Will?

Family Provision Claims.

There are two types of claims against Wills and Estates, namely –

1. That the Will is invalid; or
2. That the Will is valid but the deceased failed to make “adequate provision” for a person who wishes to challenge the Estate and ask the Court to Order provision be made to them out of the estate.

In New South Wales, a family provision claim against a deceased person’s estate may only be brought by an “eligible person”, if they believe the deceased person has not adequately provided for them.

The law says an “eligible person” is –

• a spouse (married, de facto or same sex) of the deceased person – and even a “former spouse” in limited circumstances;
• a child of the deceased person;
• a grandchild of the deceased person – but there must evidence of “dependency” of the grandchild on the grandparent; or
• a person ordinarily a member of the household and dependent upon the deceased (eg step-children)

A family provision claim will require an application to be made to the Supreme Court for an Order that further provision be made to the applicant out of the assets of the deceased’s estate.

There are several “factors” that a Court will take into account to decide whether further provision should be made out of the estate to the “eligible person”, one of which is that the deceased had a moral obligation to make provision for the applicant and did not do so.

Adequate provision is complex and difficult to define as it will vary with each applicant.

However, the Court will generally assess:

• the financial needs of the applicant,
• their relationship with the deceased person and any “estrangement” issues,
• the size of the estate,
• the deceased person’s relationship with other eligible persons,
• the effect on other beneficiaries of the estate should an Order for provision be made in favour of the eligible person, and
• if an Order for provision is to be made, who amongst the existing beneficiaries should bear the burden of that provision – where is the money to be paid from?

The financial needs of each applicant will vary and may range from seeking the right to live in a property to a financial settlement. For example, a spouse of a deceased person would expect a roof over their head, an income stream and money against contingencies, whilst an adult child would likely expect a lump sum payment for their advancement in life.

In many cases, compromises can be reached before going to court and there is compulsory mediation in matters of this nature.

A family provision claim is not necessarily dependent upon the deceased person having a Will, and family provision claims can be made in situations where the deceased person died intestate (that is, without a Will).

A family provision claim must be filed with the Court within 12 months from the date of death.

A grant of Probate or a grant of Letters of Administration is not necessary before making an application for family provision, although the Court will need to make a formal Grant before the Order can be enforced..

At Brazel Moore Lawyers, we have experience in managing all aspects of estate disputes. We have recently defended a family provision claim to ensure the entitlements of child beneficiaries are protected and, ensured the application of an adult child omitted from their deceased parents will was successful.