How to Contest a Will? Making a Family Provision Application

What is a family provision claim?

A family provision claim is an application to the Supreme Court of New South Wales for a sizeable share from the estate of a deceased person. The person making the application must be an Eligible Person. To simplify the procedure, you can implement a family provision if you satisfy these requirements:

• Be an ‘eligible person’, and
• Be left out of a will while having a financial need, or
• Be included in the will but did not receive an adequate and sufficient share of the estate.

It should be noted that a family provision claim must be filed to The Supreme Court within 12 months from the death of the testator. When making an application for a family provision, it is not required to acquire a Grant of Probate or a Grant of Letters of Administration beforehand. A family provision application can be made at anytime during the 12 months period.

In order to be an ‘eligible person’, you must be one of the following people in relation to the deceased, pursuant to Section 57 of the Succession Act 2006:

• A child (includes adopted children).
• A grandchild.
• A person with whom they were in a de facto relationship.
• A wife or husband of the deceased.
• A former wife or husband.
• Someone who was a member of the same household.
• Someone who was wholly or partly dependant at one time.
• A person with whom the deceased was in a close personal relationship with at the time of the death.

The process of making a family provision claim:

As it is not necessary to obtain a Grant of Probate or a Grant of Letters of Administration before making a family provision claim, a claimant may file a request with the Supreme Court seeking a family provision from the deceased estate.

Prior to the hearing, a mediation will be required in order to allow the parties an opportunity to reach a resolution outside of the Courtroom.

For that purpose, a mediation is an alternative dispute resolution process where the parties are required to meet in the presence of a mediator. The mediator is not authorised to give  binding order or decision. The mediator’s role is to assist the parties in reaching a resolution. If the parties do not reach a resolution at the mediation, then the dispute may proceed with the Court for a hearing.

The Court suggests this because mediation has been proven to be an effective way of resolving disputes without going to Court, the applicant will save money, time, and stress by reaching a resolution through mediation rather than in Court.

When making an order, the court will consider the following factors:

• The relationship between the claimant/applicant and the deceased person.
• Any obligations or responsibilities owed by the deceased person to the claimant/applicant.
• The financial circumstances of the claimant/applicant, including their current and future financial needs.
• The value and location of the deceased person’s estate.
• Whether the claimant/applicant is financially supported by another person.
• Whether the claimant/applicant has any physical, intellectual, or mental disabilities.
• The applicant’s age.
• Any contribution made by the claimant/applicant to increase the value of the estate.
• Whether the deceased person has already provided for the claimant/applicant during their lifetime or from the estate.
• Whether the deceased person provided maintenance, support, or assistance to the claimant/applicant.
• Whether any other person is responsible to support the claimant/applicant.
• The claimant/applicant’s character.
• Any applicable customary law if the deceased was Aboriginal or Torres Strait Islander.
• Any other claims on the estate.
• Any other matter the court may consider as relevant.

What are the costs and when should I make a claim?

An application for a family provision claim is made by filing a summons together with an affidavit in the Supreme Court of NSW, there will also be a filing fee for this process. It should be noted that any legal costs incurred does not always come out from the estate (but often does), so if the claim is not successful, the court will determine whether the claimant/applicant may need to pay all their own legal costs as well as the costs of the estate’s executors or the defendant.

Assuming the claimant/applicant is successful in making a family provision claim, judges generally make an order that the fees are subtracted from the value of the assets available from distribution. The Succession Act in NSW allows the courts to set a maximum cost for legal services that the notional estate (including superannuation) or estate will pay out, there may also be a possibility for the applicant to cover additional fees.

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The content of this article is intended to provide a general guide to the subject matter. Professional advice should be sought about your specific circumstances.