Contesting a will in NSW

The claim

A family provision claim under Chapter 3 of the Succession Act 2006 (NSW) asks the Supreme Court to order provision out of an estate for an eligible person for whom adequate provision has not been made for their proper maintenance, education or advancement in life. It is not an argument that the will is invalid. It accepts the will and asks the court to change the result.

The deadline

Section 58(2): an application must be made not later than 12 months after the date of death, unless the court otherwise orders on sufficient cause being shown, or the parties to the proceedings consent to the application being made out of time. Estates are often distributed before that period expires, which makes early notice to the executor practically important even where the claim is not yet filed.

Who is eligible

Section 57 lists the eligible persons:

• A spouse at the time of death
• A person living in a de facto relationship with the deceased at the time of death
• A child of the deceased
• A former spouse
• A grandchild, or a member of the household of the deceased, who was at any particular time wholly or partly dependent on the deceased
• A person living in a close personal relationship with the deceased at the time of death

The last three categories must also show factors warranting the making of the application: s 59(1)(b).

Costs

Costs do not automatically follow the estate. In small estates the court will cap or refuse costs, and an unsuccessful applicant can be ordered to pay. A claim on a $400,000 estate can consume a substantial part of it. Weigh the likely provision against the costs risk before you file.

The different claim

Challenging the validity of the will itself, for lack of capacity, want of knowledge and approval, or undue influence, is a separate proceeding with different evidence and no 12-month limit.