In NSW, only ‘eligible persons’ can make a family provision claim against a will. Family structures have changed considerably over the years, and it is not uncommon for a person to have children from more than one marriage or de facto relationship. To prevent these changes from complicating family provision claims, the Succession Act 2006 (NSW) limits claims against a will to eligible persons - and sets out exactly who they are.
Who is an eligible person under the Succession Act?
The exact wording is found in section 57 of the Succession Act 2006. The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person:
- a person who was the spouse of the deceased person at the time of the deceased person’s death
- a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death
- a child of the deceased person
- a former spouse of the deceased person
- a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member
- a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
Children of the deceased include children from previous marriages or relationships. Stepchildren might be considered too, if they lived with the deceased.
A close personal relationship means a close relationship between two adults who live together, where one or each provides the other with domestic support and personal care. They do not need to be related to each other, and it is separate to a marriage or de facto relationship. It does, however, usually exclude anyone providing care for payment or on behalf of another person or organisation.
Why make a claim against a will?
There are two primary reasons for making a claim against - or contesting - a will.
The first is that you are an eligible person and were either excluded from the will, or you feel the will did not make adequate provision for you - meaning your inheritance was insufficient. The court ultimately decides whether what was given to you is ‘adequate’ based on various criteria. Fairness is not considered.
The other reason is ‘essential validity’, or legitimacy. Validity may be simply a matter of the will meeting the requirements set out in section 6 of the Succession Act 2006, or it may be more complex, with a claimant alleging:
- that the will is fraudulent
- that there was undue influence on the testator with regards to specific clauses or bequests, or
- that the testator lacked mental capacity when writing and signing their will.
Allegations against the essential validity of a will cannot be made speculatively - you need to provide evidence supporting the claim. Where mental (or testamentary) capacity is in question, that may mean providing medical records and/or the testimony of anyone who witnessed the willmaker at or around the time they drew up their final will.
A solicitor experienced in contested estates can assess your eligibility and the nature of your claim, work with the executor of the will to try to resolve the claim through mediation and, if that is not successful, take your claim to court - even if Probate has already been granted.
This is general information, not legal advice. Every situation is different - for advice on your matter, request an initial consultation. Enquiring is free. There is no consultation fee for wills, conveyancing, powers of attorney, deceased estates or contested estates - for other matters an initial consultation is $275.
Related service Contested estates & family provision claims →