CONTESTING A WILL

In New South Wales, to proceed with a family provision claim, a person must be an eligible person in accordance with section 57(1) of the Succession Act NSW (2006), as follows:

• A person that was married to the deceased at the time of their death and otherwise referred to as a spouse;
• A person who was living in a de facto relationship with the deceased at the time of their death, including those people in a same sex relationship;
• A child of the deceased person. This also includes those children who were adopted by the deceased at any time during that child’s lifetime;
• A former spouse such as an ex-wife or ex-husband of the deceased;
• A grandchild of the deceased who was also wholly or partly dependant on the deceased person at any time during the deceased’s lifetime;
• A person who lived with and was wholly or partly dependant on the deceased person at any time during the deceased’s lifetime; and
• A person who was living with the deceased at the time of their death and was either providing the deceased with domestic support and personal care and/or the deceased was providing them with domestic support and personal care, without payment or reward or on behalf of another person or organisation.

When considering an application by a person for provision out of the estate, the court will take into account the following factors, otherwise known as the “section 60 factors”, in accordance with section 60 of the Succession Act NSW (2006) at the time their application is made:

• The relationship between the deceased person and the claimant, including the type of relationship and length;
• Any obligations or responsibilities owed to the claimant by the deceased person or to any beneficiary of the deceased’s estate;
• What the estate is made up of and the size of the estate. This also includes notional estate which can be superannuation, life insurance, property owned as joint tenants with the deceased and another person at the time of their death or property or cash given away with the intent of avoiding a family provision claim within 3 years immediately preceding the deceased person’s death;
• The financial position of the claimant which includes their assets, liabilities, income and expenditure as well as their financial need for provision from the estate. All beneficiaries’ financial positions will also be taken into consideration if they wish to raise their financial circumstances as a competing beneficiary;
• The financial position of any person that the claimant is living with;
• The claimant’s health, including physical, mental or intellectual disabilities that they suffer from. Again, the court will also consider a beneficiary’s health circumstances if they wish to raise same;
• The claimant’s age at the time of hearing;
• Any financial or other contribution by the claimant to the deceased’s person’s estate which can go towards the building up of estate assets, purchase of estate assets or improvement of estate assets or to the welfare of the deceased person or their family. This can include before or after the deceased’s person’s death and for which allowance has not been paid or received by the claimant;
• Any gifts made by the deceased to the claimant either out of the deceased person’s estate or during the lifetime of the deceased;
• Any evidence made by the deceased person as to their testamentary intentions, which includes statements made by them.
• Whether the deceased person was financially supporting the claimant, either wholly or partly, before their death and to what extent;
• Whether there is any person that has the responsibility to support the claimant;
• Whether there is any relevant conduct of the claimant before and after the deceased person’s death;
• Whether there is any relevant conduct of another person before the deceased person’s death;
• Any relevant Aboriginal or Torres Strait Islander customary law;
• Any other matter that may be considered relevant.