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Can A Parent Contest A Will? (NSW)

In New South Wales, only close family members and dependents can contest a will with a Family Provision Claim. Under the Succession Act 2006, a parent is not automatically eligible to contest a will. However, a parent can establish conditional eligibility to contest a will in NSW. This article explains a parent’s eligibility to contest a will with reference to a recent Supreme Court case.

Family Provision Claims In NSW

The Supreme Court of New South Wales has jurisdiction to hear claims if the testator was an NSW resident or owned real property within the state. Only an eligible person can apply to the Supreme Court to contest a will. The eligible person makes a Family Provision Claim to ask the Court to redistribute the deceased estate in their favour. This type of claim provides redress for people who were morally entitled to provision and received an inadequate portion under a will.

Who Can Make Family Provision Claims In NSW?

Only a select list of people close to the deceased can contest their will. Immediate family members like the deceased’s current or former spouse, de facto partner, and child have automatic eligibility. There is also provision for anyone in a “close personal relationship” with the deceased to contest the will. A grandchild or member of the deceased’s household has a conditional right to claim. The conditionally eligible person must prove they were also dependent on the deceased at some time in the past.

Can A Parent Make A Family Provision Claim In NSW?

While a parent is not expressly listed as an eligible claimant, they may still be able to make a Family Provision Claim in NSW. A parent can contest a will if they cohabitated with the deceased at some point and were at least partially dependent on them before they died. Most parents live in the same household as their child at some point in the past. Therefore, it is often a question of whether the parent can establish dependence on their child.

Even if a parent can successfully establish eligibility, there is no assurance that they will receive further provision from the estate. The Supreme Court evaluates an eligible claimant against the entitlement of existing beneficiaries and other claimants. The court looks at various relevant factors before deciding on redistribution of the deceased estate.

Case Study

In Elizabeth Ann Bremner v Jennifer Lee Graham [2016], the Supreme Court of NSW considered a Family Provision Claim from a parent. A mother contested her son’s will on the basis that he did not provide adequate provision for her from the deceased estate. The testator had no children and left his whole estate to his de facto partner. The total size of the deceased estate was under $300,000 before legal costs. There was also a notional estate (assets not included in the deceased estate) of approximately another $300,000. The parent did not bring a claim against the notional estate.

The parent claimed she was eligible to contest the estate as she lived in the same household as the deceased. She also provided evidence to the court to show she was partly dependent on her son. He assisted her with household tasks such as washing, cleaning, and looking after her younger children. While these duties do not seem exceptional for an older child to do for their parent, the mother claimed the deceased provided her with significant assistance in his father’s absence. For instance, because the mother was illiterate, she relied on her son to assist her with Centrelink paperwork. The court agreed that she had eligibility to claim.

The court found the son had a moral obligation to leave his mother provision under ordinary community standards. The mother had few assets, lived in subsidised housing and received a government pension. She was bankrupt at the time of claim, and the court felt that she was entitled to enough from the estate to pay her creditors and receive some maintenance assistance and advancement in life. The court ordered the applicant should receive a lump sum of $38,000 and ordinary legal costs. This case is notable for demonstrating that a child can have a moral obligation to provide for a parent in their will.

Time Limits

There is a time limit for a parent to contest a will in NSW. An eligible mother or father can only claim in the year following the testator’s death. There is provision for the Supreme Court to extend the deadline in exceptional circumstances. However, it is essential to notify the executor as soon as possible because they are legally entitled to begin distributing the estate after six months. The court is disinclined to approve a claim when the estate is already fully distributed.

The contested wills team at Armstrong Legal specialises in Family Provision Claims. The team can help you establish your eligibility as a parent to contest your child’s will. Also, the team can provide a realistic assessment of your chances of making a successful claim against the deceased estate. Please contact our experienced and helpful team today on 1300 038 223

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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