Contesting a Will
Eligible persons, who have not been adequately provided for in a Will, can go about contesting a will in NSW by seeking a Family Provision Order provided it is done within time. There are a number of interests at play since the Applicant will want an order for provision, the Executor may want to oppose the Application and the other beneficiaries will be concerned to preserve their entitlements (so far as possible).
Ordinarily a Will is contested by filing a Summons in the Supreme Court of NSW together with evidence in support. Usually help is needed from an experienced lawyer and often need the assistance of Counsel is needed too.
Essentially then a Will can be contested by specific persons under the Succession Legislation in circumstances where a wise and just testator would have provided sufficient and adequate legacy but in reality failed to do so. A Will can also be disputed on other bases such as when the maker of the Will lacked capacity and so on.
Potential Scenarios - Contesting A Will Matters
- 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;
- For applications 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.
- 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.
Important Quotes in Will Disputes And Family Provision Claims
"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 vManchester  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
Let Us Help You
- Determine if you are an "eligible person";
- If you are the spouse seek an order for provision to try and ensure you are secure in your home, have sufficient income and have a buffer against the unforeseen;
- If you are a defacto try and take steps so you are not left out;
- If you are a grandchild who, was directly dependant on the deceased, meet the higher standard of proof required (if possible);
- If you are a child of the deceased try and make sure your parents did not avoid their moral obligations to you by giving you a start in life;
- Bring the claim in time (if you are not out of time);
- In appropriate cases seek leave to bring a claim out of time;
- Consider your financial position to determine if you have not been adequately provided for;
- Attend the mediation and trial with you.
As Executor / Defendant
- Oppose claims by those who have not put their financial position forward;
- Contest claims that are brought out of time;
- Prevent so far as possible claims by applicants who have been adequately provided for;
- Help you in contesting cases brought by children of the deceased where there was disentitling conduct especially where parents were treated callously or love was withheld;
- Deal with cases where the family farm is involved;
- Apply to the court for a release of rights;
- Seek costs against the other party (in appropriate cases) or seek for costs to be capped (in appropriate cases);
- Attend the mediation and trial with you.
* This content does not purport to give legal advice. Readers must obtain their own legal advice, that applies to the particular circumstances of their case, before taking any action at all.