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Can A Friend Contest A Will? (NSW)

A friend can be closer to you than your blood relatives, but the law generally assumes that friendship is less important than an intimate relationship or familial bond. Yet for many people, their friends are their chosen family, and their friends have been more loyal and supportive than any romantic partner. In New South Wales, a family member or long-term spouse is automatically entitled to dispute the distribution of a deceased estate, but even the closest of friends does not have the same standing. The Succession Act 2006 stipulates that a non-family member can only contest a will if they can substantiate certain criteria that prove the closeness of their relationship with the deceased.

What Is A Family Provision Claim?

Certain categories of people are eligible to contest a will through a Family Provision Claim. The claimant first advises the executor or administrator of the estate (such as a solicitor or the Public Trustee and Guardian) that they intend to file a claim. After that, the claimant can make an application to the Supreme Court of NSW asking for a redistribution of the deceased estate.

As the name suggestions, this claim is designed primarily for the “family” of the deceased, but there is narrow provision for those who are not legally related to the deceased to contest a will. The claim might be to obtain some provision for a person excluded from a will or greater provision for someone who feels that they received inadequate and unfair provision from the testator. It is often the deceased’s children who make these claims, but so too do current and former de facto and marital partners.

Can A Friend Contest A Will?

A friend must qualify as an eligible applicant under a different category from the standard family categories. If they can provide evidence that they were dependent on the deceased and cohabitated with the deceased at some point in the past, they can make an application to contest the will.

Can A Friend Contest A Will: Dependence

If the friend was at least partly dependent on the deceased for some sort of support, be it financial, material or emotional, they may be entitled to make a claim against the estate. It should be noted that emotional support alone is insufficient to establish dependence. A more persuasive case would be if a friend was both emotionally dependent on the deceased, and received regular financial support from the deceased in order to meet their needs. For example, if the deceased helped a friend by regularly paying their rent because they did not have the resources, it is reasonable to assume that their death would negatively impact on the friend’s financial circumstances. The claimant will have to provide proof of this dependence to the Supreme Court, through evidence such as bank statements. Although there is no statutory level of dependence, the relative degree of support will dictate the strength of the claim.

Can A Friend Contest A Will:

Member Of Household

Although dependence is an essential factor in eligibility, the friend must also prove that they lived in the same household as the deceased at some point in the past. If a friend lived in the home of the deceased for any length of time without paying rent, it may be assumed that the deceased cared about the wellbeing of the claimant and fostered a degree of dependence. There is an assumption that cohabitation equates to some degree of close relationship that should be recognised by the law and ensure a person’s eligibility. The living arrangements can be substantiated through rental agreements or some form of bill with the shared address.

Other Factors

Even if a claimant is able to prove eligibility to make a claim, there is no attendant guarantee that the claim will be successful. The court is loath to ignore the valid wishes of the deceased, and unless the friend can prove that the testator had a moral obligation to provide for them that is more important than their obligation to other beneficiaries, then the distribution of the estate will stand unaltered. The court will look at all the factors involved and make a decision on the merits of the case.

Time Limits

An eligible friend can only contest a will in the twelve months after the testator’s death. It may be possible for an out of date application to be heard, but the claimant would have to prove that there was a justifiable cause for not making an on time application. Given the urgency involved, it is important to contact a solicitor without delay for help with the application.

The solicitors at Armstrong Legal can advise you on whether you are eligible to contest the will of a friend. They can also provide guidance on all legal matters, including succession and probate law. Our contested wills team is ready to help so please call 1300 038 223 or contact our team 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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