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Can a Beneficiary Contest a Will? (NSW)

In New South Wales, a beneficiary can contest a will on the grounds that the testator did not leave them adequate provision, but only if they are an eligible person. These Family Provision Claims are authorised by the Succession Act 2006. This article outlines the relevant time limits for Family Provision Claims in New South Wales, eligibility requirements, and how the courts usually evaluate such claims.

Which Beneficiaries Can Contest a Will in New South Wales?

A Family Provision Claim can only be lodged in New South Wales if the testator was living in the state before they passed away or owned real property in NSW.

A beneficiary can contest a will if they were:

  • The spouse of the testator when they passed away;
  • Living as a de facto partner with the testator when they died;
  • A child of the testator;
  • A former spouse of the testator;
  • A person who had been partly or wholly dependent on the testator and who lived in the same household as the deceased;
  • A grandchild who was financially dependent on the testator;
  • A person who had a “close personal relationship” with the deceased and lived with them at the time of death.

Several of these terms in relation to eligible parties, specifically “de facto” and “close personal relationship”, have specific meanings in family law.

De Facto

The Interpretation Act 1987 defines de facto partners as a couple living together in a relationship who are not married or related. De facto relationships include same-sex couples, couples registered in New South Wales, and interstate registered relationships.

Close Personal Relationship

The Succession Act 2006 defines a close personal relationship as a connection, separate from a de facto relationship or marriage, between two adults who live together, and where one party provides personal care and domestic support to the other. This definition includes adults who may or may not be family members, but not parties who provide care for a monetary reward or on behalf of a charitable organisation.

What Criteria Determines Adequate Provision?

A beneficiary can contest a will on the basis that they were not adequately provided for by the testator. The courts may consider any factors when assessing whether a beneficiary received adequate provision in a will. The main consideration is the financial circumstances of all the beneficiaries, especially the claimant. The court will also consider the relationship between the deceased and the claimant, whether the deceased made financial promises to the beneficiary, and any emotional or financial support that the claimant gave to the deceased. The court will also take note if the beneficiary had previously made contributions to the assets of the deceased, such as working in a family business. Other considerations are the health and age of the beneficiary, and their usual standard of living.

Time Limits for a Beneficiary to Contest a Will in NSW

A beneficiary can contest a will only within set time frames, as time limits apply to Family Provision Claims in New South Wales. The beneficiary needs to notify the executor in writing within six months of the death of the testator that they intend to contest the will. Although it is possible to lodge a claim after that period, the executor will have already started to distribute the bequests of the will and it will be extremely difficult to recoup the assets of the estate.

The beneficiary must also file their application with the court within a year of the testator’s death. The courts may hear a late application from a beneficiary contesting a will, but only if all the parties give consent. The court will assess the timing of the claim in relation to the testator’s death, the explanation for the late filing, and whether the estate has already been distributed to the beneficiaries.

Who Pays When a Beneficiary Contests a Will?

In New South Wales, the court determines whether a beneficiary pays the fees associated with contesting a will. The usual practice is for the estate to reimburse the costs of contesting the will if the claim is successful. Alternatively, if the claim is unsuccessful, the court can order that the beneficiary refund the estate the cost of defending the action.

The first step for a beneficiary thinking of contesting a will is to obtain a copy of the will. Anyone who is eligible to contest a will can ask for a copy of the will from the deceased’s solicitor or the executor of the estate. If there is a problem obtaining a copy, then a solicitor can help by conferring with the other parties, or by commencing court proceedings. Armstrong Legal can help a beneficiary contest a will in New South Wales and provide advice on any other legal matter. Please call our Wills and Estate Team on 1300 038 223 or message us to make an appointment.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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