Dispute Resolution
Dispute a Will

The laws of New South Wales, and indeed, all Australian jurisdictions, provide for an ability for certain people to be able to dispute a will. This is called a Family Provisions Application and is an application that is made to the Supreme Court of New South Wales, which is the highest Court in New South Wales.

The groups of people who are able to challenge a will depends on the relationship with the person who has made a will and has since passed away. The relevant groups or classes of people who can make this challenge are known as ‘eligible persons’ and are as follows:

  • A spouse of the deceased, including a de facto spouse;
  • A child of the deceased;
  • A former spouse of the deceased;
  • A person who was living in a close personal relationship at the time of the passing of the deceased; and
  • Any person who:
    1. Was at any particular time, wholly or partially depend on the deceased; and
    2. Who is:
      1. A grandchild of the deceased; or
      2. A person at that particular time or any other time, a member of the same household of the deceased.

 

When the Supreme Court of New South Wales is considering any claim made against a deceased estate, it is required to consider specific criteria, such interrelating with each other to allow for the Court to provide an answer to the question of whether a reasonable person, in the position of the deceased, would have determined that the provision as made for the relevant person making the challenge was reasonable. In that sense, it requires consideration of the following factors, per the Succession Act:

  • The type of relationship between the deceased and the applicant;
  • The nature and duration of said relationship;
  • The nature and extent of the deceased person’s estate, as well as the relevant liabilities in existence as at the time of the deceased’s passing;
  • The financial resources, needs and earning capacity of the applicant or any other beneficiary;
  • Any physical, intellectual or mental disabilities of the applicant or any other beneficiary;
  • The age of the applicant;
  • Contributions made by the applicant to the deceased’s estate;
  • Any previous provision made for the applicant by the deceased;
  • Evidence of previous testamentary intentions of the deceased;
  • Whether the applicant is or was being maintained by the deceased prior to the deceased’s passing;
  • Whether any other person is able to support the applicant;
  • The character and conduct of the deceased prior to their passing;
  • Any relevant Aboriginal or Torres Strait Islander customary law; and
  • Any other matter the Court considers relevant.

 

Careful consideration is required prior to commencing any claim, given that the possible outcomes associated with any such claim are highly discretionary and will consider a wide range of factors which are individual to every specific case. We ask that, in the event that you want any advice or assistance in commencing any claim, that you please contact our office, to allow us to be able to assist you.

For more information or assistance with your Wills Matter, please contact our office on 1300 557 819 or admin@cityprosecutor.com.au