There’s probably truth to the statement that no one plans on contesting a Will or Estate unless they have to. Unfortunately, when you do have to contest a Will that your loved one left behind, your emotions may range from disbelief to sadness. An important question to ask when considering whether you should contest a Will is, what does the Court have to be satisfied of?
Most people have no idea of the legal arguments that can be made for them or against them in a contested Will court case. This is why having an experienced and skilled Wills and Estates legal team is important to strategise the best and strongest legal argument to put forth to the Supreme Court.
If you are contesting an estate, it should be within twelve (12) months of the date of the deceased person’s death. There are also other legal variables you need to take into account. Read on and find out what factors the Court will consider in a contested Estate.
What is a “Contested Estate”?
A contested estate issue arises when an “eligible person” under the Will believes that the deceased’s Will did not appropriately provide for that person, if at all.
Executors of Wills should almost always obtain expert legal advice to handle best the legal challenges made by any person making a legal claim to part of the Estate.
“Eligible person”
To make a family provision claim, the person contesting the Will must be an “eligible person”.
An “eligible person” is defined under section 57 of the Successions Act 2006 (NSW). They include, but are not limited to:
- Any child of the deceased;
- The spouse of the deceased;
- A former spouse of the deceased;
- Common law or de-facto person in a relationship with the deceased;
- Someone who was a legal dependent of the deceased;
- A grandchild of the deceased;
- A member of the household of the deceased; and/or
- A person who had a relationship with the deceased and provided care, support, or were close, and they didn’t receive a payment for the relationship.
The last category is if there is a parent, step-child, sibling, former de-facto spouse that’s not explicitly listed as an eligible person can become eligible under the last category they lived with the deceased.
Proper maintenance, education, or advancement in life
Next, the Court must be satisfied that the Family Provision Claim is “for the proper maintenance, education or advancement in life” of the claimant, under section 59. This is where most estate planning matters involving estranged children fail.
The definition of key terms used by the Court is found in the common law case of Devereaux-Warned v Hall (No 3) [2007] WASCA 235, specifically that:
- ‘Adequate’ is concerned with the quantum; and
- ‘Proper’ is concerned with the standard, of maintenance, education, and advancement in life of an applicant for relief.
What ‘adequate’ and ‘proper’ is will depend on the particular circumstances of the case. The concepts are relative to the circumstances and are not governed by an abstract absolute: Pontifical Society for Propagation of the Faith v Scales [1962] HCA 19.
Broken down, these terms are:
Maintenance – where the needs of the Applicant cannot be met with their own resources, or what they are already entitled to under the Will. This includes:
- Mortgage repayments; and
- Household bills; and
- Medical bills; and
- Older age-related expenses; and
- Supporting any dependents, such as children.
Education – where the funds may be used to fund the Applicant’s school and further education needs. This may also encompass ‘advancement’ in terms of costs for up-skilling, such as TAFE courses.
Advancement – where a lump sum payment to the Applicant can be used to further their goals or upskill them in any way. The funds may be put towards:
- Training and gaining qualifications; or
- Contributing capital to set up a business.
Challenging a Will
If you feel you’ve been short-changed and/or left out of a Will, finding the right expert legal advice is essential.
The legal framework surrounding both the Will and any challenges to an Estate is stressful and uncomfortable to go through. You need to have someone who will stand beside you with their legal expertise while also answering your questions or helping you understand what you need to do next. Finding a comprehensive solution when dealing with someone challenging an estate is often a win-win for both the Executor of the Will and sometimes the challenger.
NSW Contested Estate and Legal Standing
In New South Wales, all family provision claims, that is, contested estate applications, are commenced through the Supreme Court of NSW.
A contested estate can only be commenced if a person has legal standing by way of being an interested party.
Someone is an interested party or person if:
- You were the Executor of a previous Will;
- You were a Beneficiary in a previous Will; or
- You were named in the final or current Will as a Beneficiary
Defending an Estate
Defending an estate is not the same thing as being an Executor of an Estate.
Courts often rule that some of the factors dealing with the disputed Estates need to be settled at mediation.
If you cannot come to a successfully mediated agreement, the Court will adjudicate a final decision. By doing that, the Court helps you defend the integrity of the Estate and the wishes of the deceased. The final result is a compromise all parties can live with for the most part.
Factors Used to Determine Your Rights When Making a Claim Against a Defended Estate
This is laid out under section 60 of the Succession Act 2006 (NSW). Some of the factors the Court considers for claims against a defended Estate that are common throughout NSW include:
- What are the deceased’s obligations or responsibilities to you?
- What are your financial circumstances now?
- Are you being supported by another person?
- Do you have any disabilities that include, but aren’t limited to, physical, mental, or intellectual?
- Where is the Estate located, and what is the value of the Estate?
- How old are the parties?
- What contributions, if any, did you make the increase the value of the Estate?
- What is the current state of your finances?
- Any character issues or concerns that are brought out at this time
- What was your relationship with the deceased?
- Was the deceased Aboriginal or Torres Strait Islander?
- What are other claims going on with the Estate?
- What other matters or concerns may the Court rule as relevant to the case?
After going through all the above, a Judge can determine if you’ve been unfairly excluded from a Will or if adequate provisions weren’t made to you in the deceased’s Will. Even if you have been unfairly excluded from the Will, the Court still has to go over what they feel you’re entitled to. It’s then that having legal representatives is of premium importance in protecting your rights.
The Right Legal Representative By Your Side
When someone you care for dies, you are already going through a difficult time. There’s no reason you should go through the legal process of contesting a Will alone.
Finding a knowledgeable Wills & Estates solicitor to guide you through a family provision claim is vital. Reach out to JB Solicitors when you’re ready to seek further information or advice on any Estate, Will, or any legal issue you may have.
Sometimes by making the best legal decision today, gives you and your loved ones a future that keeps their lives and lifestyle intact.
