Contesting a Will - Sydney NSW

• When an eligible person, who has not been adequately provided for, is unhappy with the terms of the will (or because they have been left out of the will).
• An executor of an estate may face claims from the deceased's spouse, de-facto, child, former husband / wife, a dependant of the deceased or a member of the deceased's household or someone who lived in a close personal relationship that are brought out-of-time;
• An application by a former wife / husband, those who are dependant on the deceased, grandchildren and those with whom the deceased lived in a close personal relationship there may be a contest about whether there are factors that warrant the making of the application.
• A beneficiary under the will could be served with an application for family provision, and they may then also wish to dispute the estate.
• The recipient of a distribution could be joined as a defendant on the basis that the property should be designated as notional estate.
• Most will disputes revolve around the question of whether or not someone has been adequately provided for or not.
• There could be a contest about what, precisely, the court should order once it is determined that someone is eligible and has been adequately provided for in light of competing interests.
• There may be arguments about whether an applicant has put forward sufficient evidence of their financial affairs or not.
• Adult children, who have received benefits under the will, may seek to get more of the estate in circumstances where they have arguably received their share.

"The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances." - Salmond J in In re Allen (deceased), Allen v Manchester [1922] NZLR 218 at 220-221

"The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) the word 'proper' in this collocation of words is of considerable importance. It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." - McCosker v McCosker (1957) 97 CLR 566 at 571-572