Can A Niece Or Nephew Contest A Will? (NSW)

In New South Wales, the list of people who can dispute a will is limited to close family members and dependents. A niece or nephew (the child of a deceased’s sibling) is not automatically an eligible claimant under the Succession Act 2006, but there are some circumstances when a niece or nephew might be able to contest a will in NSW. This article outlines the eligibility criteria for a dependent Family Provision Claim with reference to a recent Supreme Court case.

How To Contest A Will In NSW

An eligible claimant can make an application to the Supreme Court of New South Wales if the testator lived in NSW or was the registered owner of real property within the state. A claimant makes a Family Provision Claim to request redistribution of the deceased estate in their favour. A claimant should only make such a claim if the deceased owed them a duty to provide adequate financial support and failed to do so in their will.

Who Can Contest A Will In NSW?

The people who can contest a will in NSW include the deceased’s spouse, de facto partner, former spouse, and child. Someone who is in a “close personal relationship” with the deceased can make a claim, as can a member of the deceased’s household or a grandchild as long as they were at least a partial dependent of the deceased at some time in the past.

Can A Niece Or Nephew Contest A Will In NSW?

The most straightforward way that a niece or nephew can prove eligibility is if the deceased adopts the claimant pursuant to the Adoption Act 2000, making the claimant a legal child. This occasionally happens when a person takes responsibility for their sibling’s child because the parent died or was unable to care for the child themselves.

In some cases, even if there is no legal adoption, the court will find that the relationship was one of parent and child. In Bayley v Sivewright (No 2) [2021], the court gave leave for a niece to contest a will in NSW as the testator treated her as a daughter and she was able to demonstrate the necessary factors to warrant making an application.

Can A Niece Or Nephew Contest A Will As A Dependent?

While a niece or nephew is not expressly listed as eligible, they may be able to contest the will if they lived with the deceased and were at one time wholly or partly dependent on the deceased. Dependence here is defined as sufficient economic support to enable the claimant to afford some of the necessities of life.

Establishing Dependence

The NSW Supreme Court considered the issue of whether a niece was a dependent of the deceased and therefore an eligible person to contest a will in the case of Christine Anne Lumsden v Ian Ross Sumner as Executor of the Estate of the Late Dorothy Jean Lawliss [2012]. The plaintiff claimed that she was at least partly dependent on the deceased and was a member of the deceased’s household more than 35 years prior. The plaintiff’s parents moved because of financial constraints, leaving the plaintiff to attend school locally and live in the same house as the deceased. The deceased took responsibility for the day-to-day care of the plaintiff, taking her to outings, Sunday Service, shopping and buying her clothes. The deceased also taught the plaintiff some pastoral skills around the farm and helped her with homework. The deceased subsidised the plaintiff’s school fees, and provided accommodation, sustenance and met other financial needs.

The court found that during that period, the deceased acted in a maternal role for the plaintiff, helping to fill the absence of the plaintiff’s own mother. The court was convinced that the plaintiff was both emotionally and financially dependent on the deceased at that time. It was also undisputed that the plaintiff was a member of the deceased’s household during this time. The court referenced case law from Petrohilos v Hunter (1991) up to Drury v Smith [2012] to establish that dependence could mean both material and emotional dependence.

The court was convinced that the plaintiff was an eligible claimant because she both resided with the deceased and was dependent on her “for what she needed in her life” at one time.

When Can A Niece Or Nephew Contest A Will In NSW?

There is a time limit for anyone intending to contest a will in NSW. An eligible niece or nephew can only make a claim in the twelve months following the testator’s death unless the Supreme Court gives explicit permission for an out of time claim. However, in NSW, an executor is free to begin distribution of the assets of the estate to the beneficiaries after six months. The court is far less likely to approve a claim when the estate has been fully distributed so it is important that a prospective claimant notify the executor of their intent as soon as possible.

The niece or nephew should be aware that even if they successfully prove eligibility to make a claim on the estate, there is no guarantee that they will receive further provision. The Supreme Court will evaluate their claim against the entitlement of other claimants and existing beneficiaries, and in light of the claimant’s financial needs and other relevant factors.

The contested wills team at Armstrong Legal can help you assess your eligibility to contest a will as a niece or nephew of the deceased. The team can also give you a realistic idea of your chances of success making an official claim. Please contact our experienced and friendly team without delay or telephone 1300 038 223 to set up an appointment to discuss any legal matter.