Contesting a Will

In New South Wales, those who can commence proceedings for provision include:

• A spouse (includes a de facto spouse) and a person living in a domestic relationship (including a member of a same-sex couple).
• Child of the deceased.
• Former spouse of the deceased.
• Other dependent persons (for example, a financial dependent) who is a grandchild or was a member of the same household.

Under the family provision legislation a claim must commence within 12 months of the date of death of the deceased person but this may extended if sufficient cause can be shown.

The family provision legislation is significant in that it imposes real restrictions on testamentary freedom, where provision for family members is considered inadequate. In these circumstances, an otherwise valid will granted probate can be subject to alternative orders of the Supreme Court, designed to rectify the lack of provision. An understanding of the reach of these provisions is essential for estate planners. For some clients, it will be important to plan to prevent a successful family provision claim.

Alternatively, it may be that some clients, who have been left without adequate provision on the death of a person who has made an inadequate will, or who has died intestate, need information on how to make a claim. Legal advice is necessary here, but general information may be relevant to determine whether such a claim might be possible. The relevant legislation is specific to each State and Territory, but there are common elements to all the regimes.

By and large, the family provision legislation throughout Australia is relatively uniform. Essentially, each of the States and Territories confer powers on the court to make an order for further provision out of the estate of a deceased person if the provisions of the deceased’s will, or the intestacy laws of the relevant State, fail to make adequate provision for the property maintenance and support of an eligible person.

At present, it is only in New South Wales that the family provision legislation extends to “notional estate”, validly disposed of prior to death. However, the move towards uniform succession laws in Australian jurisdictions mean similar provisions are being considered for other jurisdictions.

In all States, the spouse and children of the deceased are eligible applicants.

If a will has already been signed by the will-maker, the only way to change the will is to make a new one or create a codicil. A codicil is a written document added to a will that contains clauses additional to the original will.

Revoking A Will

To revoke a will, the Succession Act stipulates that this may only occur through:

• an order of the court
• marriage, unless the will was made in anticipation of marriage
• divorce or annulment can revoke parts of the will, but not the whole will
• making a later will
• a declaration of intention to revoke a will that is witnessed in the relevant manner and satisfies the court
• the testator (or some other person in their presence who is directed by the testator) burns, tears or destroys the will with the intention of revoking it
• the testator (or some other person in their presence who is directed by the testator) writes the will in a manner that makes the Court satisfied that the testator intended to revoke it

If you like more information or advice regarding Contesting a Will or if you have another Wills & Estate Planning matter, please complete and submit the Express Enquiry form on the top right hand side of this page or call or on +61 2 9223 9166 to arrange an appointment.