Contested Wills, NSW Australia


Being aware of your legal rights is important when it comes to understanding and abiding by the wills of those that have passed. A will is a legal document explaining a person’s wishes after they depart this life. Though it is indeed a legal script, it is possible for wills to be contested, or challenged, in other words.

In this article, contested wills are considered through the prism of Family Provision Claims as they are known in New South Wales (NSW), Australia. These claims are made under the Succession Legislation that applies there.

A few reasons why a will could be contested include the following:

  • The will did not account for the person’s current spouse
  • The will did not include the person’s current household
  • A person feels they were unfairly left off of a will because it did not adequately provide for them given their circumstances

Will contests are difficult court cases and taken very seriously. Not many pursued claims are won, and thus this intention should be approached with mindfulness and sincerity.

Family Provision Claim

This action is pursued to contest a will to gain a larger share of an estate. The application must be filed within 12 months of the date of death and sent directly to the Supreme Court of New South Wales.

A person must be an eligible applicant to contest a will. These such people are those with the following roles, as related to the owner of the will:

  • Spouses, of the opposite and same-sex
  • Children
  • Other dependents

This process is mostly considered by currents or former spouses of the deceased. It can be an appropriate route to take for those who were residing with or relying upon the person whose will is in question.

The court will take into account many considerations when processing this claim. These will include such as the following:

  • The applicant’s character, finances, and any disabilities
  • The personal relationship to the owner of the will
  • Support provided by the owner of the will and value-added by the applicant

The act of contesting a will involves a process of delivering documents and information to the court to support the contested case. Only serious cases will be considered.

The Affidavit

To enter a claim to contest a will, a person must supply the court with an affidavit. This document will be a thorough description of the applicant’s contest.

The following portions of information are some of the details that must be included in this document:

  • The monetary value of gifts given to the owner of the will
  • Value of sold properties or public company shares
  • Financial or otherwise contribution of the plaintiff
  • Applicant’s and/or other persons conduct before and after the date of death

Including the above, another aspect of consideration in New South Wales is relevant Aboriginal or Torres Strait Islander customs law. These will apply if the deceased person was of these cultural origins.

The Process

The Court documents are filed and Affidavit is served and mediation typically begins within 6 months after submitting the claim. If mediation is not successful, the court will entertain a final hearing. This will usually take place about 12 months after the initial claim submission.

Private mediations take place with a neutral party mediator. This step is mandatory before any court hearings are scheduled. However, there may be exceptions made for certain circumstances, including the risk of violence.

The main considerations made during mediation are:

  • The final value of the estate
  • The financial need of the applicant

If private mediations are not met, then the dispute is moved to a court-annexed mediation. A settlement is the main goal of mediations, meant to avoid court hearings when possible. All of the considerations will be taken in terms of the applicant and their relationship to the deceased and the deceased’s estate. It will be determined the deceased owes a moral obligation to the applicant.

In cases where settlements cannot be obtained, the claim will move to a court hearing and the decision will be at the mercy of a judge.

When the ruling is made in favor of the plaintiff, the cost of the process is taken out of the estate. Otherwise, the applicant must pay their costs and may even be ordered to pay the cost of the estate as well.

In the time of Coronavirus

Times are different as the world faces the threat of COVID-19. What may have been a customary court proceeding now must be approached in a different way to protect the health of all parties. Furthermore, as the coronavirus claims lives by the multitude, many people may not have had their wills properly updated.

The contesting of wills may be growing due to the lack of current legal documents by the deceased. There will be a new standard of procedure for placing contests on the court.

The current guidelines for Family Provision Claims will include strict rules. Paper and digital copies of the Agreed Consent Orders are emailed to the Judge’s chambers the week before the court date.

A person will attend only their scheduled court time and date and will not enter the courtroom until called. Once the session has commenced, the party must depart the courtroom. These efforts are taken to minimize mingling with other people when not necessary and to limit unnecessary occupancy in the courtroom.

The Aftermath

Following the approval of a claim, it can take 6-18 months to receive compensation. Contesting a will is a detailed and lengthy process. This intention should only be pursued by applicants that are confident in their standing.

It is highly advised that a person researches this process at length and seeks legal advice before attempting to file a complaint to contest a will.

References

  • https://www.lawaccess.nsw.gov.au/Pages/representing/after_someone_dies/family_provision_claims.aspx 
  • https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_formsfees/SCO2_forms/SCO2_forms_subject/family_provision_forms.aspx (see: the draft affidavit) 
  • https://www.supremecourt.justice.nsw.gov.au/Documents/Home%20Page/Announcements/Family%20Provision%20List%20Guidelines.pdf
  • https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_probate/Contested-proceedings.aspx