In the State of New South Wales, the Succession Act 2006 enables you to challenge a Will in the circumstances that you have either:
- been left out of the Will completely, or
- you have not been adequately provided for in the deceased’s estate.
It is important to note however, that not everyone can just successfully challenge a Will. Section 60 of the Act provides two factors that a Court must consider when you lodge a Family Provision Claim. These factors include:
- whether you are an “eligible person”, and
- whether the Court can make a family provision order, and the nature of any such order.
Are you an “eligible person”?
You can only apply for a family provision order if you are an “eligible person”. An “eligible person” is one of the following persons:
- the spouse (wife/husband) of the deceased.
- the de facto partner of the deceased.
- a child of the deceased.
- a former husband/wife of the deceased.
- a person:
- a. who was, at any particular time, wholly or partly dependent on the deceased, and
- b. who is a grandchild of the deceased or was, a member of the household of which the deceased person was a member.
- c. a person with whom the deceased was living in a close personal relationship at the time of their death.
Can the Court make a Family Provision Order?
If you are an “eligible person” under the Act, then you can make an application for a family provision order. However, before such an order is made by the Court, the Court will need to consider the following matters:
- the nature and duration of your relationship with the deceased,
- the nature and extent of any obligations or responsibilities owed by the deceased to you,
- the deceased’s property and liabilities,
- your financial resources (including your earning capacity) and financial needs, both now and in the future,
- the financial circumstances of any person you are living with,
- your physical, intellectual, or mental capacity,
- your age,
- your contribution to the deceased’s estate, or their welfare,
- any benefit you have received from the deceased’s estate during their lifetime,
- the deceased’s Will and/or any evidence of their intentions,
- whether you were dependent on the deceased before their passing,
- your character and conduct before the decease’s passing, or
- any other matters the Court considers relevant in your application.
When the Court makes an order in your application, they will also take into consideration your “needs”, and whether such an order will be necessary for your “advancement” in life and “education”.
It is important to keep in mind that there is a strict time limit on when you can make an application for a family provision order. In New South Wales, your application must be lodged with the Court within 12 months from the date of death of the deceased person.
If you have been left out of a Will, or feel that you have not been adequately provided for, then you should contact our experienced team at Lionheart Lawyers to discuss your matter further.