Left out of a will? Defending a will?

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Have you been left out of a will?

Have you been left less than you consider you should have been left in a will?

Are you an executor of a will, facing a challenge to the will by a person claiming that the Court should override it by making provision out of the estate of the deceased for them?

In New South Wales, certain classes of people have a right to ask the Supreme Court or the District Court to make provision for them out of a deceased’s estate: s.57(1) of the Succession Act 2006 (NSW).

But any Court application has to be made promptly: usually within 12 months of the death of the deceased.

Persons who are eligible to make a claim are divided into two classes:

  • close relatives that the community would normally expect a testator (a person who makes a will) would make provision for.
  • generally more remote persons, where there is less expectation that provision would be made.

Persons in the former class are:

  • the husband or wife of a deceased;
  • a child of the deceased; and
  • a person in a de-facto relationship with the deceased at the time of death (including a same sex partner).

The second class are:

  • a former spouse of a deceased;
  • a grandchild or member of the household of the deceased who was at some time dependent (wholly or partly) on the deceased; and
  • a person with whom the deceased was in a close personal relationship at the time of death (two adults that cohabitate and provide each other with domestic support and personal care, without fee or as a volunteer on behalf of a charitable or like organisation);

Persons in the first category generally have an easier time establishing a claim, as the Court requires persons in the second category to demonstrate that there are “factors warranting” the making of their application, which are over and above their mere eligibility as a member of a class.

A Court can make an order for provision out of the estate of a deceased for an eligible applicant if it forms the view that, at the time it hears the case, “adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the deceased person” and there are sufficient funds in the estate or notional estate of the deceased to make provision, after considering the needs of:

  • the beneficiaries named in the will (if there is one); or
  • with the persons entitled to the estate on an intestacy (if there is no will).

Whether a person has a claim that is likely to persuade a Court to make provision is a complicated area of law, that calls for legal skill.

If a claim is made, and fails, it can have significant adverse impact on the person making it. In particular, Courts normally order a losing plaintiff to pay the estate’s costs of the proceedings, which can be high.

I am happy to consider whether you have a claim in a no obligation, free initial consultation.

If I consider you have a claim, I may be prepared to act for you on a “NO-WIN NO-PAY” basis.

If you are an executor, defending a claim, I am also happy to to advise you.

Please call me on 1300 431 895, or email me at justin@conomylegal.com to request a consultation.